공판중심주의 및 직접심리주의와 자유심증주의의 한계 - 대법원 2015. 8. 20. 선고 2013도11650 전원합의체 판결 -

Abstract

In this verdict, the Supreme Court has put more confidence in the witnesses’ statements made in the prosecutor’s office than in the statements in the courtroom. In other words, the court stepped on the inherent limit in the principle of free evaluation of evidence to undermine the undeniable principle of court-oriented trials and direct cross-examinations demanded in today’s criminal trials. Considering the given limits of free evaluation of evidence (First, the judge’s verdict should be rigorously based on the maximum reflection of evidence. Second, the verdict should be logical and in accordance with common sense.) and in view of the principle of open-court trials and direct cross-examinations, the following conclusions can be made. First, the principle of free evaluation of evidence presupposes a thorough study of evidence. Therefore, the fact that the high court skipped the examination of the witnesses who had overturned the statements and only adopted the prosecutors’ reports as evidence while disregarding the witnesses’ renewed testimony to give a guilty verdict manifests the court’s violation of the rule of free evaluation of evidence. Second, the prosecutor’s investigation and the process of obtaining statements from the witnesses have deviated from the normal procedure, which makes the evidence not acceptable. Otherwise stated, because the witness testimony and prosecutor’s report have been produced by using improper procedures and methods, they cannot be recognized as valid evidence. Therefore the statement made in the prosecutor’s office in this case is to be considered illegitimate evidence to make itself invalid in court. The judge’s freedom to evaluate evidence and to decide on the verdict should start from legitimate evidence. Using illegitimate evidence is against the principle of court decisions based on evidence. Third, even in case the statement made in the prosecutor’s office is recognized as valid, the court statement (original evidence) should be considered more credible than the statement in the prosecutor’s office (professional evidence) according to the principle of open-court and direct hearing. In addition, without an exception of special circumstances, the appellate court should not turn over the judgement of the first court only for a reason of being different from the first court in opinion if the judgement has been made after a direct investigation of evidence.