형사소송법 제310조의2의 적용 여부와 관련된 대법원 판례의 고찰

Abstract

Article 310-2 of the Criminal Procedure Act rules that any document which contains a statement in place of the statement made on the trial date or any statement based on the statement of another person made on a date other than the trial date be admitted as evidence. With exceptions to these rules available under Article 311 of the Criminal Procedure Act, the scope of applicability of rules under Article 310-2 is considered to be a core issue of the hearsay rule. The fact that recent rulings in lower court cases pertaining to this issue have arrived at opposite conclusion highlights the need to fundamentally re-evaluate the applicability of the hearsay rule. Conclusion of this paper based an evaluation of precedents in the Supreme Court is the following. First, the hearsay rule of the Criminal Procedure Act can be extended to applied to the case of having a characteristic of “indirect reporting” towards the court. This characteristic is distinctive because the scope of the hearsay rule applied to any evidence including the case of original evidence in relation to a fact in issue. And such legal principle applies to both the case where the existence of the original statement itself is a fact in issue and the case where making a statement itself is a fact in issue. Second, the fact that a statement serves as a circumstantial evidence for indirect facts regardless of the authenticity of the statement implies that other indirect facts along with the statement can be data from which major facts can be inferred. This is distinguishable from the use of circumstantial evidence as discussed in the hearsay rule of the Common Law.