검사작성 피의자신문조서의 예외적 증거능력 요건에 대한 재검토 - 전문법칙과 공판중심주의와의 관계를 중심으로 -

Abstract

In the current mediation plan of the prosecutor and police investigation rights announced by the government, the primary investigation rights are granted to police, but does not include details on relieving the difference in the admissibility of evidence in an interrogation of a suspect by prosecutors and the judicial police depending on the subject preparing the report. Unless such difference in admissibility of evidence is relieved, disadvantageous effects caused by a double investigation, and the delay in investigation and trials would be caused, which deviates from the intention of the mediation of the prosecutors’ investigation rights, and also directly opposes the global trend of court-oriented trials and results in the fixation of statement trials. Accordingly, in the case where the ‘details are denied’ for the requirements for the admissibility of evidence in an interrogation statement prepared by a prosecutor in a similar manner as an interrogation statement of a suspect prepared by the judicial police, it is determined that the legislation rejecting the admissibility of evidence of the statement would be reasonable. It can be concluded that, if the defendant denies the details based on such legislation, which leads to the rejection of the admissibility of evidence of the interrogation statement of the suspect prepared by the prosecutor, the prosecutor’s capabilities in the proceedings may be declined. However, the interrogation statement of the suspect prepared by the prosecutor is merely unused as evidence of guilt, and may be used as the evidence of guilt through the investigator’s witness act (Article 316 Clause 1), which grants an admissibility of evidence under certain requirements on the basis that a statement is prepared or an investigating agency that has participated in the investigation appears in court as a witness on that the defendant has made a statement, and through which, the declination of the prosecutor’s capabilities in the proceedings may be sufficiently prevented. Furthermore, the investigator’s witness act is evaluated as a clearly progressed legislation on the basis that it contributes to court-oriented trials by activating oral hearings, while simultaneously reinforcing the right of defense of the defendant. In addition, with respect to the admissibility of evidence of the interrogation statement of the suspect prepared by the prosecutor under the current laws, the regulation (Article 312 Clause 2) that a substantial appeal of a statement may be established by an objective method, such as a recorded video if an appeal of establishment is denied, rather increases the usability of documents to further regress court-oriented trials, which intend to avoid statement trials. Thus, such regulation should be omitted.