증거동의의 본질에 대한 역사적 고찰과 현대적 의의

Abstract

Discussion of the nature of the evidence consent provisions of our Code of Criminal Procedure, in relation to the structure of evidence law, is still progressive. The existing majority theory says, the Article 318 of the code of criminal procedure is related only to hearsay evidences. They say, the basis of agreement system of evidence is to give up of confrontation right by parties. However, such an interpretation, has a disadvantage which is contrary to the grammatical interpretation of the code because it excludes a protocol in which the investigative agency recorded a statement of a defendant, or ‘thing’ that is provided in express terms in the article 318 from object of consent. In addition to, it is inappropriate to the reality of law. Paying attention to these problems, the author tried to attempt a historical interpretation of the consent provisions. The provision of the agreement was first enacted at the time of Taisho Japanese Code of Criminal Procedure. Japan was focusing on the principle of right to disposal of the United Kingdom’s adversary system and introduced as exception of “Unmittelbarkeitsgrundsatz”. In the light of the literally and historical interpretation of the law, the nature of the consent provisions is similar to the principle of disposal right. However, on the letter of the code, even if the parties are in agreement to evidence, it can be used as evidence by judge’s approval of authenticity, which is the elements of the inquisitorial system. The parties have not granted the full disposal rights of the evidence. Ultimately, the essence of the consent is the parties, in particular the accused’s conduct in procedure which allows the admissibility for evidence and if it passes through the authenticity of examination of the court, it should be interpreted that it has admissibility of evidence. With the development of science and technology, it was supposed to be new types of evidence appeared in modern society. For example, recording tape, digital evidence may be mentioned. They have the characters that are different from the traditional evidence. The characters are the vulnerability, variability and duplication. Therefore, the integrity issue has emerged as a new problem. The majority theory can not give any answer them. In this respect, it requires a new interpretation theory for the nature of consent provisions.