증언번복진술조서의 증거능력과 증거동의의 효력

Abstract

The decision en banc(Case No. 99do1108 decided on June 15th, 1994) of the Korean Supreme Court gave rise to some controversial issues on criminal evidence law. It declared that “When a prosecutor summons the witness again, and subjects him to a thorough investigation, which leads to the reversal of a statement that was favorable to the defendant, made at a preparatory hearing or during the public trial, the action is against the current adversarial criminal procedure law doctrine focusing on the trial and also the principle of directness. It is also against the fundamental right guaranteed by Article 27 of the Constitution. In other words, it is in violation of the right to a trial(especially right to cross-examination), in which all the evidence is investigated and testified and the defendant may argue and defend himself in the presence of a judge. Therefore, unless the defendant concedes that such deposition can be admitted as evidence by assent, it is not admissible. Although it is another argument that when the previous witness (the original witness) appears in court in order to testify and admits to the fact that the record is authentic, and the defendant is allowed the opportunity to cross-examine, the testimony itself may be used as evidence of guilt, the conclusion that the prior deposition cannot be admissible as evidence is not changed.” This paper deals with the questions of the decision such as “why the prosecutor’s action is against the current adversarial criminal procedure law doctrine focusing on the trial and also the principle of directness and infringe the fundamental right to fair trial guaranteed by Article 27 of the Constitution” and “how it can be admissible when the defendant concedes that such deposition can be admitted as evidence by his/her assent.” Through long and discreet examination of the decision this paper argued that first, a prosecutor’s action against the current adversarial system, the criminal procedure law doctrine focusing on the trial and also the principle of directness should be regarded as the same wrongdoing as a violation of due process of law principle guaranteed by Article 12 of the Constitution, and second, an infringement of the right to cross-examination should be dealt with like a violation of as a violation of due process of law principle. From these arguments, the paper concludes that the doctrine established by the decision en banc should be changed partly and suggests that even when the defendant concedes that such deposition can be admitted as evidence by his/her assent, it cannot be admissible.