녹취서와 녹음테이프의 증거능력 등에 대한 실무적 고찰-대법원 2012.9.13. 선고 2012도7461 판결을 중심으로-

Abstract

This ruling is about the judgments in the case of using the content of recording on the recording tape that the requisite and the acceptance range of admitting the admissibility of evidence of the recording tape. In the judgment case number one, the recording tape is considered as the document of written statement from someone other than defendant. Therefore, the signature and seal and the authenticity are required. However, it is hard to see the recording tape as document of written statement that the exclusive rule of hearsay is applied. It comes from the misunderstanding of hearsay statement that the exclusive rule of hearsay applies, and in the case of using the content of recording on the recording tape as evidence then the recording tape itself should be considered as a material evidence. In the judgment case number two, the evidential material is contents of recording on the recording tape, and the defendant's statement is practically the same as document of written statement. Thus, unless the defendant agreed to use the recording tape as an evidence, to use the defendant's statement as evidence out of the written report on admissibility of evidence of the recording tape, it is required to have the signature and seal and authenticity according to article 1 of the criminal law. In the reference ruling, it is required to have identity between transcript of recording and content of recording on the recording tape, if that is the case, then it is advisable to accept recording tape itself as material evidence instead of admitting recording tape as document of written statement and requiring authenticity of content of the recording. Just like in this ruling, when the existence of statement itself constitutes the problem, understanding recording tape itself as material evidence can bring the consistency of logic and can be avoid the jump in the logic that understanding recording tape as document of written statement in the applicability of the exclusive rule of hearsay law.