개정 형사소송법에 따른 검사가 작성한 공범에 대한 피의자신문조서의 증거능력

Abstract

According to Article 312 clause 1 of the revised Criminal Procedure Code, A protocol concerning interrogation of a criminal suspect, prepared by the prosecutor, shall be admissible as evidence, only if it was prepared in compliance with the due process and proper method and the criminal defendant, who was the suspect at the time, or his/her defense counsel admits its contents at a preparatory hearing or a trial. In case of an suspect’s protocol prepared by a prosecutor to accomplice, it becomes a question of whether to apply Article 312 clause 1 or 4 of Criminal Procedure Code. Before the amendment, in this case, the Supreme Court applied Article 312 clause 4 of Criminal Procedure Code. The theory of applying Article 312 clause 4 has the advantage of making an accurate grammatical interpretation. However, when considering the purpose of the revised Criminal Procedure Code and Supreme Court’s legal opinion of Article 310, The Supreme Court has understood the confession of the accomplice as the confession of the defendant, another accomplice. The defendant can be convicted without any other corroborative evidence with only confession of accomplice, according to these judicial precedent. I think that admissibility of a protocol concerning interrogation of a accomplice, prepared by public prosecutor in revised criminal procedure code should be transmitted according to Article 312 clause 1.