영상녹화물의 증거능력을 둘러싼 논의의 분석과 평가

Abstract

The video recording system in the investigation process is generally understood as a system to ensure transparency in the investigation process and to prevent illegal acts that may occur during the investigation process and to guarantee the human rights of the suspects or the subjects under trial more effectively. However, the discussions about the video recording system have focused on how to use the video recordings, which is a byproduct of the system, rather than the procedural meaning. As we have seen in the introduction of the video recording system, the system was introduced based on the viewpoint of the recording means to record and reproduce the investigation procedure in place of the position of the (paper-based) protocol rather than to guarantee the defendant's right of defense. In the course of the actual revision, legislation was laid to provide a basis for the admissibility of evidence of video recordings. These facts continue to be the subject of debate over the admissibility of evidence. Moreover, the controversy continues even when the court's ruling has in fact made practical conclusions about the use of evidence in video recordings, this can be attributed to differences in opinion as to whether or not it is necessary to show the investigation process in court. This is no different from the past debate on the ‘trial by protocol’. The viewpoint that the criminal trial procedure actively accepts the outcome of the investigative activity, of which the declaration is the main content, is the distortion of the criminal procedure and the opinion that the discovery of reality truth is an undeniable intent of the criminal justice process : Both views are in conflict. In the current discussion of video recordings, an eclectic view argues that the admissibility of video recordings is excluded and that it is allowed to be used as proof of impeachment. However, I believe that if there is a full-scale discussion on the use of evidence as an evidence of impeachment, most opposition to the use of evidence of video recordings is likely to oppose its use as proof of impeachment. This is because they are opposed to the disclosure of video recordings in court. Ideologically, I believe that the discovery of fact truth and the principle of ‘due process of law’ are not of a nature that can be compromised. Many of the provisions of the current Korean Code of Criminal Procedure are the result of holding one hand individually. In the end, this debate, in my personal view, seems to be solved by the legislative decision.