개정형사소송법상의 증거법칙에 대한 검토 (A Study on the Evidence Rule of the Reformed Criminal Procedure Law)

서지정보

· 발행기관 : 한양대학교 법학연구소
· 수록지 정보 : 법학논총 / 24권 / 2호 / 289 ~ 308페이지
· 저자명 : 이은모

초록

This discussion in this paper on the evidence rule of the reformed criminal procedure law can be briefly summarized as follows.
First, the reformed criminal procedure law stipulated the Exclusionary Rule for the purpose of deterrence illegal criminal investigation and protect the principle of due process of law. It seems the result of our efforts against the Supreme Court's decisions denying the Exclusionary Rule. This attitude of our reformed act looks desirable and I expect resonable Supreme Court's decision concerning the application range of this rule.
Second, reformed act allows the Electronic recording of custodial interrogation and permit it as a evidence for proving the consistency of statement and records. But the Electronic recording of custodial interrogation should be permitted only for the purpose of admission for consistency, not for proving crime itself.
Third, the records of witness's statement conducted in front of investigator, can be used as the evidence in case the defendant have had the opportunity for examining the witness. And this provision looks resonable judging from the point of view for the fair trial and protection of defendant's rights.
Fourth, the reformed act of 2007 stipulated the investigator's testimony on the defendant's confession conducted in face of him in interrogation. But I think this stipulation of the reformed act is a kind of legislative mistake. Therefore we must have interpreted the investigator's testimony as a evidence that could be used as a limited purpose for only proving the consistency of statement and records drawn up in interrogation.

영어초록

This discussion in this paper on the evidence rule of the reformed criminal procedure law can be briefly summarized as follows.
First, the reformed criminal procedure law stipulated the Exclusionary Rule for the purpose of deterrence illegal criminal investigation and protect the principle of due process of law. It seems the result of our efforts against the Supreme Court's decisions denying the Exclusionary Rule. This attitude of our reformed act looks desirable and I expect resonable Supreme Court's decision concerning the application range of this rule.
Second, reformed act allows the Electronic recording of custodial interrogation and permit it as a evidence for proving the consistency of statement and records. But the Electronic recording of custodial interrogation should be permitted only for the purpose of admission for consistency, not for proving crime itself.
Third, the records of witness's statement conducted in front of investigator, can be used as the evidence in case the defendant have had the opportunity for examining the witness. And this provision looks resonable judging from the point of view for the fair trial and protection of defendant's rights.
Fourth, the reformed act of 2007 stipulated the investigator's testimony on the defendant's confession conducted in face of him in interrogation. But I think this stipulation of the reformed act is a kind of legislative mistake. Therefore we must have interpreted the investigator's testimony as a evidence that could be used as a limited purpose for only proving the consistency of statement and records drawn up in interrogation.

참고자료

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