전문증거의 증거능력에 대한 논의 - 전문증거법칙의 예외인 통상문서 해석을 중심으로 -

Abstract

The Korea Supreme Court and the High Court have had different view about the the admissibility of the evidence of records regularly conducted activity. Both courts applied the requirements for the regular document as an exception to the rule against Hearsay, but they still gave different conclusions. It is the admissibility of the evidence, prior to the probative value of the evidence to determine whether the evidence is records regularly conducted activity as an exception to rule against Hearsay. The courts have interpreted “Records regularly conducted activity” with free evaluation of evidence by judges in the stage of the admissibility of the evidence. Some commentators criticized that the guilty is depending on admissibility of the evidence in the court. Firstly, there are no specific and non-vague regulations on the requirements for Records regularly conducted activity as an exception to the rule against Hearsay. On contrast, Federal Evidence Rule 803(6) in U.S has adopted the specific and clear statute of requirements for regular document, even referring to the proving burden of the proof. Second, the courts had confused the admissibility of the evidence and the probative value of the evidence. In United States, the jury, untrained in law, who have no prior knowledge of the case presented to them, determine the probative value of the evidence, therefore the law of evidence including hearsay rule has been developed in order to promote fair and accurate fact finding by the untrained lay jury. The judges have determined the admissibility of the evidence before the jury. However, in Korea judges well trained in law, who have determined the admissibility of the evidence, makes the decision of probative value of the evidence and the guilty or not. Therefore the judges may confuse the admissibility of the evidence and the probative value of the evidence. To settle this, Firstly, it is necessary to enact the statute or rule referring to clear and objective requirements of records regularly conducted activity. It may support a Judge to determine whether the evidence is admissible depending on clear and objective requirements. It helps judges not to determine the admissibility of the evidence with Judges’discretion of fact finding.