수사보고서에 기재된 참고인과의 전화통화 내용의 증거능력- 전문법칙과의 관계를 중심으로 -

Abstract

Under the existing Criminal Procedure Act, an investigation report isevaluated to help find a substantial truth as well as to be a specific andaggressive tool. On the other hand, since the report could affect against thedefence right of the defendant, it is to be made use of as an evidence with itproperly regulated and under rigid conditions. The relevant prejudication saysthat an investigation report containing the recordings of phone calls with atestifier constitutes a hearsay evidence because it is 'a document containingstatements from those other than the defendant' under Section 1, Article 313 ofthe Criminal Procedure Act, but nonetheless it lacks an admissibility of evidencebecause there is no signing or sealing on the document, and because theintegrity of the evidence is not proven by the mentioner on the date of preparation of a trial or the date of a trial. However, when it comes toguaranteeing the defence right, it is thought to be more favorable to applySection 4, Article 312 of the Criminal Procedure Act. Since an investigation report is never a 'record of statement', it still seemshard to include the report directly into the record of statement by the testifierunder Section 4 of Article 312. Nonetheless, there is no particular reason totreat the report to be different from the record of statement. Therefore, in mostcases, it is thought that the admissibility of evidence of the report is to besufficiently determined pursuant to Section 4 of Article 312. In order to resolvethe controversy surrounding the above problem, it is worth considering todirectly determine the admissibility of evidence with a concrete clause of therelevant law about the investigation report, if and when a legislationopportunity comes in the future.