반대신문권과 수사기관조서의 증거증력과 증명력

• 영문명: The Relation of the Right of Confontation to the Admissibility and Probative Power of the Statements in Protocol of Investigative Agent
• 발행기관: 한국형사판례연구회
• 저자명: 이완규(Lee, Wan Kyu)
• 간행물 정보: 『형사판례연구』형사판례연구 제18권, 356~410쪽, 전체 55쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.06.30

영문 초록

In this case, the Supreme Court of Korea gives very important opinion for the evidence law in general, ① Lowering of the probative power of the statesment in the protocol of investigative agent in the light of the weakness of the written record ② Unrecognizing the proof value of the statements where the cross-examination lacks. First, With indicating the inaccuracy of the record in the light of statements in fact, lowering of the probative power of the statesments in the protocol of investigative agent in general is inappropriate. In order to complement such a weakness, the law provide the strict provisions for the protocol drawing up. Furthermore,this kind of view falls into difficulty in answer to the question, “Can be the lowering problems all solved, if we, for the complement of such weakness, record the total statements or record them in tapes or video tapes?” This problem is not for statement in the protocol, but for the probative power of the out of court statement. Probative power is the thing which should be judged in each case individually with considering total situation with relation to the situation in which the statements were made, contents of the statements and comparison with other evidences. By the way, the problem of confrontation has important meaning from the new tendency which views the problem in other way than hearsay approach. But the method of the Court leads to the confusion with the meaning or the standard because of the termonology which the Court has used, that is , substantial proof value and inadmissible. Recently, the problem of confrontation is understood as a procedural right of the defendant in the criminal procedure and there is an American approach and a European Union approach. In my opinion, Considering our constitutional provision and criminal procedure, the European Union solution is proper. The admissiblity of the statements made in the situation in which the defendant cannot confront the speaker should be judged be the standard of the fairness of the process, that is, the question, “Would it harm the fairness of the process in the whole to admit the statements?” By the judgement, it would give an important ground to see the resposibility of the investigative agent for the nonconfrontation situation. But the responsibility of the investigative agent should not be an absolute ground for the inadmissibility of the statements, but would be the ground for prudent judgement of the probative power considering whether the substantial parts of the statements could be confirmed by other materials, when the statements are the only one important evidence to support the charge. Furthermore, Because the time of the confrontation is not limited to the trial, it would be useful to evaluate the provision in our criminal procedure for the interrogation with confrontation by the public attorney and investigative officer and to use it as a meaningful tool for guaranteeing the chance of confrontation of the defendant.

목차

Ⅰ. 서

Ⅱ. 실질적 직접주의론과 조서 증명력의 열등성론

Ⅲ. 반대신문과 진정한 증거가치론

Ⅳ. 결어

키워드

반대신문권 공판정외 진술 수사기관의 조서 증거능력 증명력 confrontation out of court statement protocol of the investifative agent admissibility probative power