공범 공판조서의 증거능력 규제방안 - 대법원 판례의 비판적 검토를 중심으로 -

Abstract

In other incidents, the Supreme Court have constantly recognized accomplice protocols of hearings as evidences based on Criminal Procedure law Article 315, provision 3 in regard with the power of evidence from accomplice protocol of hearing. However, the code of Criminal Procedure Article 315, Provision 3, in comparing with Provision1 and 2, is the provision in which lack of regular definitions as well as adumbrative lawmaking formality may cause problems. However, even if those problems could be overcome by limiting the documentation equivalent to the amount of scope of those of the code of Criminal Procedure Article 315, Provision 1 and 2, the accomplice protocols of hearing were not regularly written regardless of proper crimes. Also, even if the relevant criminal facts would be in the Article 315, Provision 3, the protocols wouldn’t appear to have credibility by circumstantial guarantee due to the absence of cross-examination. Therefore, recognizing the accomplice protocol of other hearings as evidence to the criminal defendant in this hearing unconditionally would squarely violate or not correspond to constitutional due process (Article 12 of the Constitution) and the right to a fair trial (Article 27 of the Constitution). Therefore, even though accomplice protocol of other hearings is made in the presence of a judge, in order to be recognized as evidence against the criminal defendant of this hearing, as it is not the statements from the defendant, it would be desirable to be admitted under the strict regulation, Criminal Procedure Article 313, Provision 1.