형사소송세서 필적분석증거의 허용성과 그 한계

Abstract

The 「Law on the Identity Verification by Confirming the Fact of Self ‒signature」 hadbeen enacted and will be enforced soon. Accordingly, the use of signature instead of thumbprint or seal is gradually increasing. The use of signature is helpful in active dealings on credit however, there is also a possibility of ill ‒ use. If a document is suspected of forgery, handwriting analysis is required and handwriting analysis is based on the hypothesis that “the handwriting of each individual is unique, handwriting shows the characteristic of an individual and there are no two handwritings that are perfectly same”. However, this hypothesis has never been validated and,furthermore, it is very difficult to test its validity. In Korea, the two elements of handwriting analysis standard are the constancy and the scarcity. However,in case of the constancy, handwriting of an individual changes as time passes by. As for the scarcity, it can differ dependent on the quantity/quality of exemplar ‒ document/questioned ‒ document and the experience/qualification of the handwriting analysis specialist. When these facts are considered, it is very difficult to warrantthe validity and reliability of handwriting analysis. It is known that the accuracy of handwriting analysis specialist is 85% while the accuracy of ordinary person is 70%. However, this is based onthe assumption that there had not been any impact of external factors. Ifthe fairness of handwriting analysis would be questionable, it can be said that the accuracy difference between ordinary person and handwriting analysis specialist is not on significant level. In addition, the handwriting analyses for criminal cases in Korea are mostly done by government institutes such as the National Scientific, Criminal & Investigation Laboratory; therefore, the fairness of it is not warranted. The handwriting analysis should meet the objective requirements such as;the authenticity of the exemplar document should have been validated, there should be sufficient evidences thatvalidate that the exemplar document and questioned document had been prepared by same person, the creation timing of the exemplar document should be within the same time frame with the creation timing of questioned document and all cautions during the requested writing had been abode by. In the absence of any one of these, the admissibility of handwriting analysis as an evidence in the court should be denied. Evena handwriting analysis specialist witness would be allowed after all above objective requirements had been met, still the handwriting verification of the questioned document should be done by the judge and jurywhile the handwriting analysis specialist would just explain the similarity and difference between the questioned document and exemplar document in the court. At present in Korea, there is no curriculum for the handwriting analysis in universities which would teach the theories and practice of document authenticity analysis including the handwriting analysis. Also, there is neither chartered certificate system nor an association of handwriting analysis specialists. In the criminal cases, most of the handwriting analyses are done by government institutes. Accordingly, there is minimal accumulation of handwriting analysis theories and it is difficult to find empirical studies on the accuracy rate of handwriting analysis. Another issue is that the number of handwriting analysis requirement is too many for one handwriting analysis specialist in a government institute because the number of handwriting analysis specialist itself is very small. The judgment on the sameness between an exemplar document and a questioned document should be consequently made by a judge; however, there is no information being published in Korea, which would provide the judges with theoretical and practical basic information on the handwriting analysis. Therefore, it is suggested that qualification certificate certifying curriculum for the document analyzers including handwriting analysis would be created in universities and a system to give chartered qualification certificates to them would be established. In addition, an arrangement can be made so that periodical booklets would be published and educate the judges during their periodical in-service training so that the judges in charge of trials can have basic knowledge in handwriting analysis theories/practice. As last,document analysis worksincluding handwriting analysis currently being done by the government institutes would be transferred to neutral agencies in phases and a systematic device for the identity verificationin addition to signature for the dealings on credit such as the presentation of ID card of the self would be also required.