수사절차상 참고인조사와 진술조서의 증거능력

Abstract

The investigation agency may conduct the necessary investigation to achieve the goal of investigation (Article 199, clause 1), and hear testimony by requesting the presence of a witness.(Article 221, Clause 1). Here, there are no restrictions on the time, method, and place of a witness's investigation, and the witness cannot be forced to attend an investigation agency because it is a free investigation, However, even if evidence preservation and witness interrogation claims are prepared as a way to forcibly secure the testimony of witness, the introduction of the witness recruitment system is being discussed, but it is necessary to be careful. In legislative theory, it is necessary to consider the mail testimony system, telephone testimony system, and video investigation system if there is no significant problem in handling the case. And, no need to notify the witness of the right to reject testimony, but even in case of fake testimony, it is impossible to punish under the criminal act, so there is an insistence to enact the judicial interference crime. However, it seems to have the possibility of human right infringement by investigator as long as no measure such as 'the article for distorting law " is newly enacted. Meanwhile, in the investigation of witness, the late-night investigation from 9 pm to 6 am, the long time investigation is restricted and the break of 10 minutes is grant every 2 hours so that total investigation shall not exceed 12 hours and the actual investigation shall not exceed 8 hours. In the meantime, the video recording and the investigation process recording system is prepared in order to secure the transparency of investigation process of witness. In addition, the trusted party attendance system, the victim lawyer system, the testimony assistance system, and the use of video in the trial are conducted to ensure the adequacy of the victim's procedures, and it is desirable to expand the testimony assistance target and apply it generally. On the other hand, the witness can participate in the procedure to identify the criminal, and the measures such as advance recording, multiple face-to-face, prevention of advance contact and written policy should be taken to increase the reliability of testimony. If the testimony of witness under the evidence law is created as a report-in terms of the relation with professional rule-the evidence capacity is recognized under 4 requirements such as creation under proper procedure and method, recognition or proof of the actual establishment of authenticity, guarantee of opportunity for cross-examination, and proof of special status. Even after indictment, the witness investigation is basically allowed, but it can be said to be hard to grant the evidence capacity without special circumstance because both testimony reversal report and 'prospective witness testimony report' are against to partyism and trial-centeredness.