형사소송에서 피고인의 증거동의와 철회가능 여부- 대법원 2019. 3. 28. 선고 2018도13685 판결 -

Abstract

In the Criminal Procedure Act, the principle of trial-centeredism restricts the introduction of various kinds of records or professional evidence of investigative agencies submitted outside the courtroom. However, there is a limit to reviewing all materials at the trial. In Article 318(1) of the Criminal Procedure Act, the parties are required to confirm whether or not they agree to make the data available as evidence for the efficient progress of the trial before the attack and defense. This means that proceed with the proceedings efficiently by making the testimony possible by confirming the consent of the parties prior to the proceedings and to the court will summon the original testimony as a witness only to the evidence without consent. However, evidence agreement can lead to the loss of the opportunity to discover the substantive truth by giving up confrontation to the expert evidence without evidence. Therefore, it is necessary to pay attention to the consent of the evidence. Evidence of consent already made can be withdrawn in principle, but there are conflicting views on the timing and conditions. In this paper studied the time allowed for withdrawal of consent, the interpretation of consent and implied consent, the cancellation by mistake, the evidence of illegal collection, the legal fiction of withdrawal of consent and withdrawal based on the Supreme Court recently sentenced to March 28, 2019. The court’s ruling is appropriate because the accused can not cancel due to his mistake and the accused's withdrawal of consent is possible until the investigation of the evidence is complete.