피의자신문조서에 대한 형사소송법 제314조의 적용문제 - 그리고 피의자신문조서의 증거능력에 관한 입법론 -

Abstract

When one of the partner in crime refuses to testify in the court or cannot testify due to the events such as committing suicide, getting murdered, and missing in action (go into hiding) after the law enforcement agencies (prosecutor's office and the police) completed the interrogatories of criminal suspects after investigating two people (principal and accomplice), can the court use previously completed interrogatories as evidence to prove criminal activity? This paper analyzes and discusses this very issue. When the law enforcement agencies submit the interrogatories of criminal suspects as evidences to the court, the particular evidence gets classified as hearsay evidence. These types of hearsay evidences, by definition, are denied by the court as inadmissible evidence. This is referred asthe Hearsay Rule and this rule is explicitly set forth in article 310, clause 2 of the Korean Criminal Procedure Code. However, the article 312 clause 1 and clause 3 states exception to the rule based on whether the interrogatories were written by the prosecutor or the police. However, this exception can only be applied when the original testifier (who has given testimony in the past as a criminal suspect according to the investigation process) is able to come to the court and testify in person. The article 314 of the Korean Criminal Procedure Code comes into play when the original testifier cannot testify in front of the court due to various reasons such as committing suicide, victim of murder, death from sickness, missing in action, hiding, and medical conditions such as amnesia. This paper, analyzing the issues associated with applying article 314 of the Criminal Procedure Code, consists of the following sections: (Ⅱ) The general overview of the article 314; (Ⅲ) Detailed discussion on specific issues associated with applying article 314 on interrogatories of criminal suspects; (Ⅳ) Analysis of the problem of current law where the admissibility of evidence differs based on whether the interrogatories were written by the prosecutor or the police and de lege ferenda on this matter.