미국에서의 증언거부권에 대한 검토 - 우리 형사소송법상 증언거부권 법제에 대한 시사점 도출을 중심으로 -

Abstract

In criminal proceedings, witnesses have a variety of obligations, including attendance, oath and testimony. Regarding the testimony obligations of witnesses in criminal proceedings, Article 148 and 149 of the Korean Criminal Procedure Act provide for the testimonial privilege. The testimonial privilege here means the right of the witnesses who are obliged to testify to refuse such testimony if there is certain reason. However, the general debate on such testimonial privilege of witnesses in the Korean Criminal Procedure Act is still insufficient in Korea. Therefore, in order to derive some implications for the Korean law of testimonial privilege, this article examines the testimonial privilege in the United States where not only have a large number of cases been accumulated over a relatively long time in relation to such testimonial privilege, but the academic discussions have also been more active. At the U.S. federal level, the testimonial privileges have been recognized at common law. In the U.S., the recognition of the testimonial privileges is an exception, not a principle. Theories that justify such testimonial privilege include utilitarianism, guarantee of autonomy, and protection of informational privacy. Utilitarianism has been the oldest and most traditional rationale for the testimonial privilege. However, the fact that such utilitarianism was limited in recognizing the testimonial privilege, especially in family relationships, led to the emergence of the guarantee of autonomy and the protection of informational privacy as the theoretical basis of the testimonial privilege. At the U.S. federal level, where relatively few types of testimonial privileges are recognized compared to states, the attorney-client privilege, the spousal privilege, and the psychotherapist-patient privilege are generally accepted. The debate on improving the testimonial privilege law at the U.S. federal level has mostly focused on the issue of expanding the testimonial privilege, for the reason there are fewer types of federal testimonial privileges compared those of other states. Of course, it is neither desirable nor feasible to transfer the U.S. testimonial privilege law reviewed above to Korea, since it contains the historical, social, and cultural context of the U.S.. However, as a result of the comparative review of the U.S. law on testimonial privilege, it seems necessary to reexamine the following points regarding the law on testimonial privilege under the Korean Criminal Procedure Act. First, unlike in the U.S. law on testimonial privilege where the testimonial privilege belongs to the owner of the secret, not a witness, the testimonial privilege belongs to the witness in Korea. As a result, the problem arises in Korea that there is no way for the owner of the secret to control such disclosure if the witness does not exercise his or her testimonial privilege. Improvements are needed to in a way that strengthen the protection of informational privacy by allowing the owner of a secret to have control over the disclosure of such secret. Second, compared to the testimonial privilege in the U.S., the testimonial privilege in intimate relationships, such as family relationships, is only recognized to refuse to testify about incriminating information, but not about confidential communications within such relationship under the Korean Criminal Procedure Act. For the protection of right to privacy, the Korean Criminal Procedure Act should be revised in a way that recognizes the testimonial privilege about the confidential communications in intimate relationships as well.