공소제기 후 피고인신문의 적법성 여부 및 허용범위

Abstract

The Supreme Court’s Decision 2009Do10412 decided April 28, 2011 ruled that the seizure and search after the indictment were illegal investigations, and the confiscated materials collected through the investigation were evidence of illegal collection and were absolutely not admissibility of evidence. The Supreme Court’s Decision 2013 Do6825 decided November 28, 2019 ruled that the voluntary investigation after the indictment did not immediately illegal, but the recorded witness statement was not admissibility of evidence in light of the basic principles(adversary system and the principle of court-oriented trials) of the Constitution and the Criminal Procedure Act. Therefore, The judgment that Interrogation of the defendant after the indictment was legal and that the recorded defendant’s statement was admissibility of evidence became no longer valid. Whether the investigative agency’s out-of-court interrogation of defendants after the indictment is illegal should be based on the principle of due process of Article 12 (1), basic rights to a fair trial under Article 27 of the Constitution, and basic principles(adversary system, the principle of court-oriented trials, direct cross-examinations) of the Criminal Procedure Act. So, it is reasonable to specifically and individually determine whether the Interrogation of the defendant has “the necessity and proper scope of the investigation” as a voluntary investigation by comprehensively considering the timing, purpose, background, content, procedure, and method of the investigation. Therefore, Interrogation of the defendant after the indictment, in the form of an investigative agency summoning the defendant to unilaterally interrogate the defendant, is an illegal investigation that does not have “the necessity and proper scope of the investigation” in light of the Constitution and Criminal Procedure Act, such as adversary system and the principle of court-oriented trials and the recorded defendant statement is not admissibility of evidence. On the other hand, Interrogation of the defendant, which is advantageous to the defendant, such as voluntarily attending an investigative agency and making a statement in his favor, is a legitimate investigation, so if the defendant agrees to evidence or acknowledges the contents, the the recorded defendant statement is admissibility of evidence.