증거보전절차에 의한 아동 성폭력범죄 피해자 보호와 피고인의 반대신문권의 조화방안

Abstract

On December 23, 2021, the Constitutional Court decided that special provision of admissibility of evidence was unconstitutional. The special provision of admissibility of evidence recognizes that a video containing the testimony of a victim of a sexual violence crime under the age of 19 could be used as evidence. This special provision of admissibility of evidence infringes the defendant's right to a fair trial by limiting the defendant's right of cross-examination too much. To improve this problems, we intend to review Preservation of Evidence. But, it is true that evidence preservation procedures have not been widely used until now. In addition, there is still a concern of secondary damage even if the preservation of evidence is used. In order to improve the problem of the evidence preservation procedures, first, on the Criminal Procedure Act or the Act on Special Cases for Punishment of Sexual Violence, we should place provisions that specify the presiding judge's duty to limit the cross-examination that suspects or defendants infringe on the moral rights of witnesses. However, there may be cases in which the content that the suspect or defendant must exercise the right to cross-examine is inevitably accompanied by a violation of the victim's personal right. In this case, even if it is about the victim's personal right, the suspect or defendant should exceptionally be allowed to use the cross-examination right to examine the witness. However, if the victim who is a witness is under the age of 18, the suspect or defendant cannot directly ask questions to the witness. He asks the presiding judge to ask questions on his behalf, and if the presiding judge permits, the presiding judge asks the witness on behalf of the suspect or defendant indirectly. Excluding the participation of the suspect or the accused seriously infringes on his right of cross-examination, it should be limited to exceptional cases. Even in the exceptional cases, the suspect or defendant must take a way to listen indirectly by a video relay in a other place. The right to participate should be explicitly granted to the public prosecutor, the accused, and defendant. The court’s duty to notify the right to participate should be specified as follows