증거의 진정성과 증거규정 체계의 재구성 - 미국연방증거규칙으로부터의 시사점-

Abstract

Provisions of Article 312 and Article 313 of the criminal procedures law use terms of ‘authenticity of constitution’ and ‘thing prepared according to legal procedures and methods’ or ‘preparer’s or alleger’s handwriting, signature or seal’ as admission requirements of admissibility of hearsay evidence, and paragraph 1 of Article 318 uses a term of ‘when admitted as authentic’, and it must be considered as authenticity of evidence. In other words, constitution of actual authenticity is not estimated even though constitution of formal authenticity is admitted in case of a letter describing representation for Article 312 and Article 313. Provisions require compliance and legality of the specified procedures of documentation in addition to authenticity of signature and seal must be interpreted as provisions to enhance the related requirements to obtain authenticity of evidence, and paragraph 1 of Article 318 must be interpreted to mean authenticity of evidence in general terms. A problem is that there is no provision regarding how to evidence authenticity of other evidence than a written document describing representation as well as evidence by electronic evidence or evidence by recording media. Thus, the criminal procedures law must be systemized to settle the problem through regulations regarding exclusion of illegally collected evidences (paragraph 2 of Article 318), regulations regarding discretion of confession or representation (Article 309, Article 317) and regulations regarding restriction of admissibility of sole confession (Article 310) to return the relevant provisions to the original preamble principle state after deleting authenticity requirements from the preamble principle, specify the authenticity part of evidence as future-oriented to contain all documents (strict requirements must be specified as it is now for a writing describing representation) and things including evidence of authenticity of electronic evidences, etc newly emerged as the most basic requirements of admissibility, and restrict admissibility of a document prepared by an inspection institute.