형사소송법상 특신상태의 의미와 개념 요소 및 판단기준에 관한 소고

Abstract

A large number of the exceptions of hear-say rule under paragraph of article 312 section 1 etc. require “the circumstance of special credibility”. Meanwhile, theories or precedents have not been examined deeply about correct meaning of the circumstance of special credibility, and they have been mixed up credibility itself and voluntariness with the circumstance of special credibility. But the exceptions of hear-say rule must admit under the strict standard and that is more important in the circumstance of special credibility's application and interpretation. The circumstance of special credibility is "circumstantial guarantee of especially strict credibility" beyond the general circumstantial guarantee which can be require in another hear-say evidence. In other word, the circumstance of special credibility should be judged by exterior circumstances in that times of statement. Practical operation is more important than theory about the circumstance of special credibility. In fact, we were less interested in the circumstance of special credibility than accordance between statement and written evidence. Also, prosecutors didn't make a effort to prove and judges didn't judge strictly by the accurate standard. In this courses, the exceptions of hear-say evidence have been used widely, in these days people are confused whether it is principle or exception. Of course, there was much trying to strenthen the requierment of the exception of hearsay evidence, for exemple, limiting the report by questioning the capacity of evidence. However, most important thing is that by the effective operation of the stipulated requirements we can prevent the using of the unadmissible evidence. On the other hand, I wish to rectify the unconcern and the fallacy about the circumstance of special credibility, so the evil that admissibility of evidence is denied unreasonabliy vanish.