형사증거법의 재조명II: 크로포드 이후 전문법칙의 미래
Future of Hearsay after Crawford
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Why do we conduct a comparative research on the subject of law or legal principles? I believe that is because we would like to understand to which point we are going to in comparison with other developed nations. If we find out that we are proven to be more effective in protecting a criminal defendant's rights than others, we will have a chance of giving some guidance to them. However, if we are far behind of them, we have to try to change our practices and reality for keeping pace with them. In 1961, we have imported the rule against hearsay to our criminal procedure law which was known to be based upon civil law system. That is because we wanted to ameliorate our criminal justice system by introducing one of key adversarial factors developed in the common law tradition. Some commentator have even boasted the fact that we have promulgated the rule against hearsay for the benefits of a criminal defendant. 'We guarantee the Confrontational right or cross-examination opportunity to all the defendants.' They said that we did our best for a fair trial by excluding some testimonial evidence which was gathered in ex parte situation. However, as a matter of fact, the rule that we have imported and kept continuously is not a rule worth of adoration. It is “an old-fashioned crazy quilt made of patches cut from a group of paintings by cubists, futurists and surrealists.” Moreover, it does not guarantee the fairness in a criminal processing because there are so many exceptions to it. Thus, the Supreme Court of America has begun to re-consider why the rule had been established by conducting a comparative research between the past and the present. The final report of it is Crawford v. Washington.
Abstract
Why do we conduct a comparative research on the subject of law or legal principles? I believe that is because we would like to understand to which point we are going to in comparison with other developed nations. If we find out that we are proven to be more effective in protecting a criminal defendant's rights than others, we will have a chance of giving some guidance to them. However, if we are far behind of them, we have to try to change our practices and reality for keeping pace with them. In 1961, we have imported the rule against hearsay to our criminal procedure law which was known to be based upon civil law system. That is because we wanted to ameliorate our criminal justice system by introducing one of key adversarial factors developed in the common law tradition. Some commentator have even boasted the fact that we have promulgated the rule against hearsay for the benefits of a criminal defendant. 'We guarantee the Confrontational right or cross-examination opportunity to all the defendants.' They said that we did our best for a fair trial by excluding some testimonial evidence which was gathered in ex parte situation. However, as a matter of fact, the rule that we have imported and kept continuously is not a rule worth of adoration. It is “an old-fashioned crazy quilt made of patches cut from a group of paintings by cubists, futurists and surrealists.” Moreover, it does not guarantee the fairness in a criminal processing because there are so many exceptions to it. Thus, the Supreme Court of America has begun to re-consider why the rule had been established by conducting a comparative research between the past and the present. The final report of it is Crawford v. Washington.
참고문헌 (27)
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