재판과정에서 피고인의 인권 보호 –피고인의 증거동의를 중심으로-

Abstract

The system regarding the Agreement to Evidence, together with the Protocol in Question and Answer Form are the two major elements of the Trial based on Protocol. Recently, there have been amendments to the Criminal Procedure Act, which restrict the admissibility of evidence in terms of a protocol containing a statement of a suspect in which a prosecutor recorded to the equal level of the same in which a senior judicial police officer recorded. Criminal defendant's Agreement to Evidence submitted by the prosecutor is a disadvantageous procedural act allowing it to be used against him as evidence of guilt. Agreement to Evidence should be made by way of actively declaring one's intention regarding specific evidence submitted by a prosecutor, rather than a way that is implicit or simply without objections. To this end, the presiding judge must sufficiently explain the effect of the Agreement to Evidence beforehand. However, the current practice of trial is far from it. It is not in line with the ideology of achieving equality of opportunity in procedures and constitutional fair trial right to allow a criminal defendant to undertake a disadvantageous procedural act against himself without sufficient prior explanation and full understanding of the evidence presented by the prosecutor. In order to attach importance to the actual meaning of criminal defendant's Agreement to Evidence and rectifying the practice of trial based on protocol, it is necessary to consider institutionalizing sufficient prior explanation regarding the effect of Agreement to Evidence by a presiding judge. Criminal defendant's statement giving an opinion on whether or not to agree to evidence is subject to the right to remain silent, and statement on whether or not to approve the authenticity in the formation of the protocol regarding a documental evidence, according to the judicial precedent, is also subject to the right to remain silent. Therefore, the most effective way is considered to enact the system of notifying the right to refuse Agreement of Evidence, taking into account the section 244-3 of the Criminal Procedure Act stipulating the system of investigative agency giving notice of Right to Remain Silent. It is expected that substantially guaranteeing Agreement to Evidence through sufficient prior explanation will be an effective method to implement the ideology of achieving equality of opportunity in procedures and constitutional fair trial right, preventing the harmful effect of the trial based on protocol.