대검찰청 소속 진술분석관이 피해자와 면담하는 과정을 녹화한 영상녹화물의 증거능력 - 대법원 2024. 3. 28. 선고 2023도15133, 2023전도163, 164 판결을 중심으로 -

Abstract

Recently, the Supreme Court decided that the video recording of the interview with the victim by a legal science analysis officer of the scientific investigation bureau of the Supreme Prosecutors’ Office may not be considered to have been produced outside the investigative process, and thus the admissibility of the pertinent video recording cannot be recognized pursuant to Article 313(1) of the Criminal Procedure Act and furthermore, since the pertinent video recording does not constitute a protocol concerning the interrogation of the suspect at the investigative agency, a protocol of a written statement of a person other than the criminal defendant, or a written statement prepared by the criminal defendant or a person other than the criminal defendant, its admissibility under Article 312 of the Criminal Procedure Act may not be recognized(Supreme Court Decision 2023Do15133, 2023Jeondo163, 164 Decided March 28, 2024). However, the pertinent video recording was made in the course of performing his/her duties by a legal science analysis officer who is not the investigative agency. Therefore, it should be treated like a document on which ‘a person who is not the investigative agency’ recorded the statement of a person other than the criminal defendant ‘outside the investigative process’. Under the Criminal Procedure Act, ‘the investigative procecess’ signifies the process of ‘investigation’ by ‘the investigative agency’. Article 311 of the Criminal Procedure Act regulates ‘Protocols of Court or Judge’ and Article 312 regulates ‘Protocol Prepared by Prosecutor or Senior Judicial Police Officer, etc.’ and the wording ‘except as provided for in the preceding two Article’ in Article 313(1) indicates that a written statement or a document containing a statement which does not belong here is subject to Article 313(1). This interpretation is consistent with the objective meaning of the legal text and the legislative intention. This point of view is also supported by the fact that a written appraisal prepared by an appraisal trustee who is not the investigative agency, pursuant to Article 313(3) is regulated by Article 313(1) and 313(2). Therefore, it should be said that the pertinent video recording is subject to Article 313(1). The attitude of the pertinent decision is in the area of evidence’s admissibility to deal with matters to be dealt with in the area of evidence’s probative value. I think the perspective of the pertinent decision requires reconsideration.