현행 공판중심주의의 운용상의 문제점과 그 개선방안

Abstract

Trial-base Principle is judging the guilty and not-guilty of a defendant based on various evidences collected in the trial court. The core of the Criminal Procedure Code that had been revised and implemented from January 1st 2008 is the faithful realization of Trial-base Principle by forming the confident belief on guilty and not-guilty of the defendant in the court while guaranteeing the human right and defense right of the defendant. The faithful realization of Trial-base Principle should be a very efficient system for both defendant and the institutes of criminal law. It should be efficient in both guaranteeing the basic-rights/human-right of defendant and the finding of the substantive truth. However, the current application of Trial-base Principle is still on the level of trial based on the police reports. The Oral-proceeding Principle and the Hearing-focused Principle are the cores of the Trial-base Principle; however, they are not completely combined now while the proper trial preparation procedure is also not vitalized. The vitalization of Trial-base Principle has a possibility of restricting the activities of investigative agencies. It also has a risk of aggravating the perjury by indiscriminately acknowledging that the original evidences collected in the court have absolute superiority over the hearsay evidences in evidence value. The truthful Trial-base Principle should not restrict the just investigative activities of investigative agencies or make the agencies as investigative agencies of the court. It also should not exclude the evidence value of police reports prepared by the investigative agencies. The essential realization of Trial-base Principle is in the having the judges form confident beliefs by transmitting the uncontaminated evidences to the judges in the court. It should also expose the testimonies with fresh fragrances that agree with the substantive truths. The Trial-base Principle would be faithfully realized when the perjuries would be essentially restricted in the court and the live collected evidences would be documented in detail in the public trial protocol by way of the Oral-proceeding Principle and the Direct-hearing Principle.