녹음매체의 증거능력에 관한 몇 가지 검토

Abstract

From Article 310-2 of the Criminal Procedure Act, we can derive the concept of hearsay evidence that the Criminal Procedure Act intends, that is to say “a document containing a statement or a statement containing another person’s statement”. There is no provision about hearsay within hearsay in the Criminal Procedure Act. If Article 310-2 of the Criminal Procedure Act is analogously applied to the sound recording medium, this is to be regarded as hearsay evidence. The concept of hearsay evidence means a ‘document’ or a ‘statement’ that is on the premise of a ‘statement’ in the Criminal Procedure Act, so we can restrict the extension of double hearsay evidence to a double hearsay ‘document’ or a double hearsay ‘statement’ that is on the premise of a hearsay ‘statement’. As a result, a transcript of sound recording medium would be understood as a double hearsay document containing a hearsay document, so could not be a double hearsay evidence in the Criminal Procedure Act. Whether the contents recorded in the sound recording medium correspond with those of its transcript or not is to be the matter of authenticity, and a transcript of sound recording medium should be dealt with a copy of sound recording medium. The evidence admissibility is the object of legal regulation. The fact that the Criminal Procedure Act has provisions about hearsay evidence, not double hearsay evidence means that the evidence admissibility of double hearsay evidence is excluded. But the Supreme Court decides that the evidence admissibility of a double hearsay document containing a hearsay statement is not to be excluded exceptively. In order for the evidence admissibility of sound recording medium to be recognized, its ‘authenticity’ that means an item of evidence is what the proponent claims it is must be recognized first. The 'being genuine' of Article 318 (1) of the Criminal Procedure Act does not appear to have been legislated in the sense of ‘authenticity’. ‘Being genuine’ is understood as meaning that there is no typical circumstance that could make the evidence admissibility doubted. Whether sound recording medium is hearsay evidence or not should be judged according to the recorded content and the purpose of proof individually.