형사소송 절차에서의 탄핵 대상에 대한 소고 - 탄핵증거의 정의를 바탕으로 -

Abstract

The Criminal Procedure Act and the rules did not directly use the terms “Impeachment” or “Impeachment evidence” nor did they define them. The Supreme Court defines “impeachment evidence as acceptable to attack the reliability of a statement evidence.” At the same time, the Supreme Court uses the term “impeach” on non-statement evidence, raising questions about what the exact definition of impeachment is and whether non-statement evidence is subject to impeachment. The academic orthodoxy defines the impeachment evidence as “evidence to contend with reliability of a statement evidence”, but this does not conform to the interpretation of Article 318.2 of the Criminal Procedure Law, which also goes against the content of Article 77 of the Criminal Procedure Rule. Clause 2 of Article 77 of the Criminal Procedure Rule stipulates that ‘interrogation shall be concerned with matters concerning the reliability of testimony and the credibility of witnesses’, so the subject of impeachment is not only the reliability of statement but also the credibility of witnesses. Furthermore, considering that the U.S. federal evidence rules, which are the origin of our impeachment evidence clause, set impeachment as an “attack on the credibility of witnesses,” the subject of impeachment should be limited to “the reliability of testimony” and “the credibility of witnesses.” Nevertheless, the Supreme Court’s use of the expression “impeachment” on non-statement evidence stems from the lack of a definition of impeachment evidence and an understanding of the subject of impeachment, which should be used from now on.