공판조서와 피고인의 반대신문권 - 일본과의 비교법적 고찰 -

Abstract

Korean Criminal Procedure Law § 311 provides for unlimited admissibility for trial transcripts made by a trial court or an evidence collecting judge. The notion that statements before a court or a judge is trustworthy and the authentication of the transcript are regarded as the rationale for the admissibility. Dominant majority and judicial precedents view that § 311 applies only to the transcripts taken in the pending criminal trial for the defendant, so the transcripts made in proceedings other than the current criminal trial for the defendant fall within § 315 No. 3 'the residual documents made under specially trustworthy circumstances'. The traditional theory summarized above leads to the simple conclusion that any trial transcript may be admitted according to either § 311 or § 315 No. 3. But trial transcripts should be treated discriminately in admissibility according to the difference of the statements contained therein, that is, whether it is a defendants' own statement or not, or performed under an oath and a cross-examination. Trial transcripts from other trials or proceedings, having present defendants never exercised their right to cross-examine, needs proper measures to guarantee the defendants' right before it is presented. Especially, when statements written on the transcripts are of non-defendants and made by them as a party in other proceedings or trials, the necessity for the opportunity for cross-examination is greater. All trial transcripts should be ruled by § 311, instead of § 315 No. 3, because they share the same characters. § 315 No. 3 provides for a category which contains the residual miscellaneous documents having nothing but 'made under specially trustworthy circumstances' in common. Trial transcripts from other trials or proceedings does not procure the current defendants their right to cross-examine. Especially, such documents are significantly less reliable, when statements are made by a party who do not take an oath and a cross-examination by the other party are not conducted. To secure the right to cross-examination of present defendants, § 311 needs to be revised so that the transcripts on which the defendants have never been given the opportunity to cross-examine may be brought in, only when the declarant has been found unavailable, or he is present to be cross-examined.