진술거부권행사와 형사소송법 제314조 소정의 진술불능사유

Abstract

The Supreme Court recently made a judgment to deny the admissibility of evidence of a statement when the defendant exercised the right to silence for the statement that he or she wrote at the court. About a year before the judgment, the Supreme Court abandoned its old attitude of seeing the right to refuse to testify as a ground of statement incapacity in Article 314 and denied the application of Article 314 to the cases of right to refuse to testify for the legal opinion written by the defendant. There has been controversy over whether it is right to regard the right to refuse to testify as a ground of statement incapacity and whether the right to silence whose content and legal grounds are different from those of right to refuse to testify should be regarded as a ground of statement incapacity in the same context. When the finding of substantial truth as an idea to be pursued in criminal actions is emphasized, they try to recognize the admissibility of hearsay evidence as broadly as possible by relaxing the application conditions of Article 314. One can approach substantial truth more closely by expanding the pool of evidence to flexibly judge and use admissibility of evidence and putting the focus of fact finding on probative force than restricting admissibility of evidence excessively. Furthermore, given that the authenticity of a statement to which Article 313 is applied is achieved only by the statement of a preparing person, the admissibility of evidence of the statement cannot help being denied when the defendant exercise the right to silence. It is here that the application of Article 314 emerges as an alternative to recognize admissibility of evidence. The Constitution declares that all people should not be forced to make a statement unfavorable to them in a criminal case(Article 12, Clause 2), and Criminal Procedure Code stipulates that the defendant is allowed to make no statement or refuse to make a statement for individual questions(Article 283, Clause 2-1), thus guaranteeing the right to silence as a right of the defendant. Making a detour through Article 314 for the admissibility of evidence of a statement whose admissibility of evidence is denied by meeting no requirements of Article 313 due to the exercise of right to silence not only restricts the defendant's right of confrontation unjustly, but also causes disadvantages for the defendant on the ground of right to silence. There is also a need to recall that Article 314 has been revised in a direction of reinforcing the elements of the trial priority principle and the direct trial principle. In addition, the legislative intent of Article 314 is to relieve the admissibility of hearsay evidence, which means there should be as strict interpretations of it as possible. Article 314 of Criminal Procedure Code allows a report and other documents to be submitted as evidence when the person that has been asked to make a statement is not able to do so due to death, illness, stay in another country, unknown whereabouts, and other equivalent reasons. Here, "other equivalent reasons" include reasons that correspond to death, illness, stay in another country, and unknown whereabouts. Considering it, when a preparing person or the original person making a statement is present at the court but gives no statement that supports the authenticity of concerned documents, it does not fall in the category of "time when the concerned person is not able to make a statement for other equivalent reasons.“