형사소송분야 회고와 전망 - 증거 및 상소를 중심으로 -

Abstract

During the 60 years since the Criminal Procedure Law was enacted in 1954, the theoretical development of criminal procedure law has been remarkable. Although there were time lags, these theoretical achievements have been largely reflected in presenting direction to practice and legislation. It is not clear whether the interpretations based on judgments, as well as the current legal provisions, are faithful to the ideals and values of criminal lawsuits. On the basis of these questions, in celebration of the 60th anniversary of the Korean Criminal Law Association, I review three issues that need to be reexamined in the interpretation, legislation and practical aspects of the evidence law principles and appeals system. First, we examine the scope and criteria of the exclusionary rule of illegally obtained Evidence (Article 308-2) enacted through amendment of the 17th Criminal Procedure Law of 2007. Some doctrines and judgments exceptionally acknowledge the evidence of illegally collected primary non-testimony evidence and the evidence of secondary or non-testimony evidence collected through it. The criterion is based on a comparison of profits, a comprehensive judgment, causal disconnection, and core domain theory. However, if some theories and judgments recognize the exception of recognizing the evidence of illegally collected evidence without clear and specific criteria, the litigation ideals and values ​​to be realized through the law of exclusion of illegal collection will be compromised. Therefore, in the process of collecting evidence, if the rights of the Constitutional and the defendant are infringed and affect the judgment, the law of exclusion of illegal collection should be applied without any evidence or non-testimony evidence. Secondly, there has been constant criticism of whether the exemptions of the hearsay rule violate the principle of court-oriented trials, which is the basic principle of criminal proceedings. From the standpoint of ongoing judicial reform, it is necessary to examine the legislative process by deleting the provisions of the criminal justice system that prescribe exceptions to the application of the hearsay rule in order to be faithful to the heist-centered approach. Therefore, in order to correct distorted investigation practices beyond the principle and to adhere to the trial-centeredism, Articles 312 and 313 of the Criminal Procedure Act, which prescribe the exception of professional laws, should be deleted legally. In the field of appeal, it is doubtful whether the Supreme Court is playing a role in the function of appeal. The current Super Supreme Court system is expected to provide both legal rights to protect the legitimate interests of the public and the logical and reasonable interpretation of laws and regulations as well as policy functions to achieve future direction. It is difficult. From this point of view, various methods have been discussed for restructuring the function and structure of appeal. However, in order to minimize the amendments to the existing Constitutional provisions while maintaining the three-core lawsuit structure, it is also possible to faithfully carry out the functions of appeal, I think it is the most reasonable plan.