전문법칙 적용사례 연구

Abstract

Various legal principles regarding Articles 310-2 to 316 of the Criminal Procedure Act have been established by The Supreme Court precedents over a long period of time. The Supreme Court has tended to interpret these provisions in terms of normative declarations rather than logical aspects, aiming at ‘regulating the appearance of investigative procedure statements in trial proceedings.’ Although these theories has played a positive role in terms of due process and human rights protection, there are also cases where logical explanation and resolution are not smooth enough to apply it consistently to all cases. This is the case in cases where the defendant or an important reference confesses or makes a statement consistent with the alleged facts during the investigation and then overturns it during the trial. If we apply the legal principles of conventional precedents to this case of statement reversal, we can see that it leads to a strange conclusion that cannot be easily understood. This is because, in accordance with the legal principle of leaving the admissibility of evidence to the will of the defendant or the person making the original statement, most of the evidence disappears in court in cases of reversal of statement. In this article, I examined in detail the problems of these precedents by looking at the evidentiary decision-making process taken by the courts in the target judgments. As seen in the target judgments, attempts were made to use legal principles to forcibly prevent statements made during investigation procedures from appearing in court in the form of records, investigator testimonies, and video recordings, resulting in unreasonable logic that appears to be illogical and without much evidence to make a judgment. Statements during investigative procedures can appear in court not only in records, investigator testimonies, and video recordings, but also in the court statements of the person who made the original statement. Even if they are not actual evidence, they can be used as impeachment evidence, so in the end, it is impossible to completely prevent them from appearing in court. While acknowledging this point, there is a need to interpret the hearsay rule more flexibly.