2022년도 형사소송법 판례 회고

Abstract

Reviewing the cases of the Supreme Court decisions on Criminal Procedure Law in 2022, there were many cases related to seizure and search of digital information, following those in 2021. As the Supreme Court is leading the jurisprudence for a new phenomenon in a situation where legislative solutions fall behind, it is expected that many precedents related to this field will continue to be issued for the time being. In addition, a number of judgments worthy of in-depth evaluation were issued in the field of evidence law related to cross-examination and hearsay. The only decision en banc in relation to the Criminal Procedure Law was on the direct appeal to the Supreme Court without a higher court review. This paper has reviewed 21 cases out of 118 decisions in 2022 related to the Criminal Procedure Law. The overall impression I personally feel is that the Supreme Court has been bold and active in breaking with the traditional its own position. In the field of evidence law, the movement to strengthen the principle of parties control and trial-centeredness is gaining more weight, while in the field of search and seizure of digital information and trial procedures, the movement of judicial activism and guardianship for the protection of the accused stands out. In particular, it seems that the Supreme Court does not hesitate to create de-facto legislative matters through precedents in Criminal Procedure which are supposed to be passed by the National Assembly. It seems to be trying hard to make a valid legal theory for a new phenomenon, but the ultimate evaluation of it is somewhat reserved. It seems to be agile and bold in creating new legal principles, but I think it needs a little more consideration for sufficient consistency.