형사증거법상 진정성 입증(authentication)의 체계적 의미에 관한 연구 -형사소송법의 해석론과 관련하여-

Abstract

This article deals with the ‘authentication’ in Section 901(a) of U. S. Federal Rules of Evidence (hereinafter “FRE”) and its relationship with the evidentiary process and system in the Korea Criminal Procedure Act (hereinafter “KCPA”). The Supreme Court of Korea has recently introduced the concepts of ‘identity’ and ‘integrity’ in the cases of digital evidence, as requirements for admissibility of evidence, apart from the hearsay exceptions. In the meanwhile, some scholars argue that, before adopting this concepts of ‘identity’ and ‘integrity’ of evidence by the Supreme Court, the requirements of ‘authentication’ should have already been introduced into the KCPA. Other scholars are also of opinion that the ‘authentication’ in FRE and the “authenticity in formation of the protocol“(art. 312, 313, hereinafter ”authenticity in formation“) of KCPA, as one of the hearsay exception requirements, be either the same or at least similar in their function, since the requirement of ”authenticity in formation“ must be established before it might be received into evidence. The main topic of these arguments is the ”authenticity in formation,“ which means that the protocol is written with the same correctness as the out-of-court-statement of the accused and without any omission therein. This research starts from the very idea that the ‘authenticiy,’ the genuineness of a item of evidence what it purports to be, and ‘authentication’, the process of examining the genuineness of evidence, are not one and the same. In conclusion the followings are emphasized: first, the “authenticity in formation” should be distinguished from the ‘authentication’; secondly, the court and scholars be careful not to overestimating the usefulness of introducing the ‘authentication’ into the interpretation of KCPA; and finally the ‘authenticity’ should be developed in a inductive manner from the experience in Korean criminal procedure.