피고인신문과 진술거부권 그리고 재판심리

Abstract

From 1970’s authoritarian time, the authors of books for Criminal Procedure brings a big interest in protecting and increasing the right of the accused and defendant. To the present, there are many professors and lawyers who think it is the better direction which gives more profit to the accused and defendant. But the Republic of Korea in 2010’s is not governed under the military dictatorship. The democratization of politics and the democratization of many social parts have been accomplished considerably and the various systems for the protection of human rights have been introduced so far as not to stand after any advanced country. at the degree which is introduced. Therefore It comes to the point in which theory of fair trial should have an interest with the direction which serach the balance between the prosecution and defendant. Viewing from history and the written letters of the current code of criminal procedure and the trial with fairness and balance, the right of the prosecution to question the defendant as defendant should not be excluded by the right of the defendant not to answer, because the current law recognize the right of the prosecution and defence attorney to questiont independently to the right of the defendant not to answer. Consequently prosecuting attorney can put questions to the defendant though the defendant in advance tell his thought not to answer to all questions. But it is up to the decision of the defendant, whether he refuses all questions from the beginning to the end, or part reply and partly refuses. Also, In questioning the defendant, there is no ground of statute and rules for the court to ask the prosecution to submit in advance in the written form all the questions he will put. Forethemore it would be inappropriate because it could restrict the right to question unjustly. And it would not be allowed for the court to delete the questions in advance partly at random under the name of the power to control the process and force the prosecution not to ask the questions deleted, if there is no special circumstances in which the prosecution proceeds the question illegally and it is necessary the illegal questioning. If there is a problem in questions, it should be solved by the objection of the other party and the court could interfere with the problem in judging the objection.. The situation seems to be against the fairness and balance of the trial in which the defendant refuses to answer to all the questions from the prosecuting attorney, but reply to all the questions from the defence attorney, because, in that context, though the defence attorney is able to submit the evidence of the statements of the defendant, prosecuting attorney can not submit the evidence. Therefore, the law should be interpreted in the way that when the defendant reply to the questions from the defence attorney, he could not refuse the cross examination of the prosecuting attorney. To prevent the controversy in interpretation, it would be necessary to solve the problem legislatively by stipulating clearly.