형사소송에서 증거로 활용되는 녹음파일 등에 관한 실무상 문제점에 대한 소고

Abstract

Although there are many criminal cases in which parties uses audio recordings as evidences with the development of recording technology, Korean Criminal Procedure Act does not provide for specific provisions regulating admissibility of audio recordings. Therefore, the elements of admissibility for audio recordings have been formed by judicial precedents and legal practices. However, recognition of the admissibility of audio recordings is entailed by multiple problems, not only because they are submitted in various forms, but also because these problems usually do not occur with documentary evidence, giving rise to confusion. This article attempts to examine such problems and devise reasonable ways to address them. Specifically, the questions to be addressed are: admissibility of audio recordings under the Act for Secret Protection on Communication, and admissibility of the copies of audio recordings as opposed to the original recordings. As to the interpretation of the Act for Secret Protection on Communication, judicial precedents have provided reasonable interpretation; yet, it should not be indiscriminately applied to the recordings that were accidentally produced, for example, through a CCTV camera. Meanwhile, the admissibility of copies of audio recordings must be examined according to the requirements set by judicial precedents. Where admissibility of submitted recordings is debatable, said recordings may first be accepted as evidence, and then their admissibility may be decided when a judgment is rendered. When audio recordings are submitted as a evidence, the court should decide and clearly distinguish whether they are submitted as evidence of deposition or non-testimonial evidence. And in both cases, the court should ensure that evidences which are not firmly admissible are not disclosed, and properly make a sound judgment when litigants make erroneous argument on admissibility of evidence. Generally, transcripts of audio recordings are not deemed to have evidentiary value independent of the audio recordigns on which they are based. However, procedures deciding on the admissibility of evidence must take into account varying opinions on the evidence of audio recordings and general evidence.