피고인의 반대신문권이 침해된 증언의 증거능력과 책문권 포기 가부

Abstract

The Right of Cross Examination of the Defendant should be recognized as a basic human right. It implements the principle of due process which is the guiding ideology of criminal procedure and regulated under Article 12(1) of the Constitution. It also actualizes the right to have a fair trial of Article 27 of the Constitution. The Court precedents do not explicitly state that the Defendant’s right to cross-examine is a fundamental right under the Constitution. However, considering the judgments say that the Defendant’s right is important as it actualizes the right to have a fair trial and that restricting the essence part of the right of cross-examination invades the right to have a fair trial, it is interpreted that the Defendant’s right has a status of the basic human right of the Constitution. Considering the Constitutional status of the Defendant’s right, it is reasonable that testimonies that lack the right to cross-examine cannot be used as evidence. Complying with the relevant laws and regulations must be required for the admissibility of evidence. The Supreme Court precedents basically deny admissibility of evidence in neither case which the judge did not grant the Defendant the opportunity to participate or cross-examine nor case which the judge overlooked the illegality of the procedure for examining the witness that the witness answered to questions from the prosecutor but did not answer to cross-examination. Criminal procedure and civil procedure are clearly different in that the former aims to realize social justice and the latter pursues a reasonable settlement of private disputes. Thus abandonment of the Right to Ask Questions in criminal procedure requires a careful approach. If a violation of procedure threatens the principle of due process by hindering the discovery of the substantive truth or invading the rights of litigants including the Defendant, abandonment of the Right to Ask Question should not be admitted easily. In the case of witness interrogation, testimony at the court plays a key role in determining guilt, and the defendant’s right to cross-examine has a fundamental status under the Constitution. Thus it is unreasonable to allow the Defendant to abandon Right to Ask Question under the illegal situation that the Defendant could not participate in or exercise the right to cross-examine.