전문증거의 개념과 범위

Abstract

The rule against Hearsay is traditionally a prominent feature of the law of evidence as it has developed in the common law. and this rule was recognised by the end of the 17 century. and it has remained one of the cornerstones of the Anglo-American laws of evidence to the present day. This rule provides that a fact may not be established by calling A, who did not see or hear it, to tell the court that he heard B, who did, describe it; either B must be called to describe it the court, or the incident must be provied by some other means. Traditionally the definition of the Hearsay Evidence is that ' an assertion other than one made by the a person while giving oral evidence in the proceeding is inadmissible as evidence of any fact assert. The rule against Hearsay is also important part in our criminal procedure law. but the rule against Hearsay in our criminal procedure law is some different from rule in the common law. Straightforwardly recent discussion about the rule against Hearsay is concerned about the exception of rule against Hearsay, therefore the discussion about the concept and scope of the Hearsay Evidence is rather sparse. But the Hearsay Evidence is the base of the rule against Hearsay, and if some evidence come under not the hearsay evidence but the direct or original evidence,prosecutor and accused and lawyer can place evidence before court without special limit. Also the Judge can decide the case on the base of the original evidence. And unlike the Hearsay Evidence, prosecutor and accused need not agreed the evidence the original evidence, and Judge can use the original evidence without the cross examination. But if evidence amounts to the hearsay evidence, the evidence has no competency as evidence, therefore the process of agreement to the evidence has a meaning, also examination whether the evidence amounts to the exception of the rule against Hearsay or not is important. And we finally arrived at this conclusion. 1) Conditions of Hearsay Evidence are (a) there is statement or unverbal act with some intention (b) this statement or unverbal act must be offered indirectly to the court (c) the goal offering statement or unverbal act is to prove the fact in the statement or unverbal act. 2) Intentional unverbal act amounts to the Hearsay Evidence. 3) Digital evidence - for example Digital Camera, Voice Pen, Computer etc -amounts to the Hearsay Evidence as not statement but written statement. 4) Unintentional implied assertion does not amount to the Hearsay Evidence.