일본의 전문법칙의 예외적용에 관한 실무현상과 과제 - 검찰관 면전조서를 중심으로 -

Abstract

The purpose of this study is to descriptively discuss the operation and arguing points of practices concerning how third person's (not the accused) such testimony records (written evidence in the presence of public prosecutor) obtained from prosecutor's investigation according to the rule of hearsay evidence, particularly as provided in Art. 321.1.2, Criminal Procedure Act, are evidenced in certain form on trial in court. It is reasonable to say that there has been a consensus on recognition of hearsay evidence, i.e. ‘anything submitted as an evidence to verify the veracity of any oral or written statement made in a public trial court, which contains any statement outside the court’ in accordance with the wordings of Art. 320, Criminal Procedure Act. In particular, ‘to verify the veracity of any oral or written statement’ in the later half of above definition about hearsay evidence means that hearsay evidence is ‘testimonial evidence.’ In other words, it is reasonable to say that hearsay rule becomes questionable if a person seeks to verify the facts of his or her (original) statement through written ‘statement’ or oral ‘statement’ made by other person during the former's testimony. In order that written evidence about any party except the accused in the presence of public prosecutor can be adopted as evidence, it is necessary to satisfy all certain requirements such as whether statement unavailable (needs to permit any hearsay evidence) and statements in the public trial court are contrary to applicable written evidence or whether there are different statements in reality (conflicting or inconsistent statements) and whether there is any special circumstance that any statement made before the next statement in public trial court should be trusted as a final evidence. Indeed, it is generally known that conventional prosecutory investigation of Japan has been limited simply to any correction of police investigation records, but suspected person and the accused are not allowed to sit together at prosecutor's investigation into the person who made original statements. Thus, there are considerable criticism to adopting hearsay evidence only based on the satisfied ‘requirements’, because it involves very serious problems from the viewpoint of assuring the right of cross-examination for the accused as well as from the perspective of veracity.