성폭력 피해자 진술 영상녹화물의 증거사용에 대한 고찰

Abstract

On December 23, 2021, the Constitutional Court ruled that Article 30 (6) of the Act on Special Cases concerning the Punishment of Sexual Violence Crimes was unconstitutional by excessively infringing the Defendant’s right to cross-examine. Since then, a unified view has not yet been presented on the countermeasures, but the introduction of a procedure that guarantees the defendant’s right to cross-examine is mainly discussed while listening to the victim’s statements at the beginning of the investigation, such as evidence preservation procedures. The Constitutional Court also cited that evidence preservation procedures are possible as the basis for violating the principle of minimum infringement. However, in reality, it is impossible or difficult to secure the victim’s statement through evidence preservation procedures. On the other hand, video recordings of sexual violence victim statements of minors as well as child abuse victim statements of child abuse crimes that apply mutatis mutandis can still be used as evidence if the victim acknowledges the authenticity. Therefore, it is realistic to investigate the victim through video recording during the investigation stage and prepare for the case where the victim attends court and acknowledges the authenticity. In this case, institutional supplementation is necessary so that the victim does not suffer secondary harm due to unnecessary questions and answers. Furthermore, it is necessary to review the application of Article 314 of the Criminal Procedure Act