영미 증거법상 전문법칙의 연혁 및 근거에 관한 고찰 - 형사소송법상 전문법칙과 비교법적 관점에서-

Abstract

The Korean legal system pertains to the Continental-European system. In the area of criminal law and procedure, the Korean legal system has been greatly influenced by German rules and theories. However, the Korean Criminal Procedure Act adopted provisions for cross-examination and hearsay rule in 1961. This study focuses on the origins and rationale of hearsay rule in Anglo-American rule of evidence and Korean law. The ultimate goal of this study is directed at looking for a desirable form of future Korean style hearsay rule. It will be necessary to study the origins and rationale of hearsay rule for attaining this goal. Hearsay rule is one of the important elements of the adversary system. In addition, Anglo-American evidence law, including hearsay rule, is a child of a Jury system. Historically, Anglo-American evidence law became necessary because there were lay jurors as fact-finders. However, basically, the structure of criminal procedure of Korea is inquisitorial. There was not a jury system in Korea. The professional judge decides both the law and the facts in the Korean legal system. Thus, some people might think that if there is not a jury system, and the judge is a fact-finder, there is no need to adopt exclusionary rule, such as hearsay rule, in the Korean law. Nonetheless, hearsay rule is a firmly rooted principle in the Korean legal system. However, historically, the jury system and the adversary system have been bases for hearsay rule. The pivot rationale for hearsay rule is that the declarant cannot be examined. Therefore, we need to promote the adversary trial and the cross-examination for the future form of Korean style hearsay rule.