형사소송법의 주요 개정과정과 의의

Abstract

Criminal Procedure Act(hereinafter “CPA”) has been amended 14 times from its enactment to the present. In this article I will comment the initial act and chief amendments of CPA, which are the first, third, fifth, sixth and eighth revision. Our Legislators introduced followings into CPA: ⑴ A public prosecutor instructs judicial police officers and assistants in the investigation of crimes(§195, §196). ⑵ Public prosecution by state(§246) and discretionary indictment(§247①). ⑶ Being committed to a court for trial for an application for complaint by high court(§260～§262). ⑷ Detention and notice of cause(§72) and notice of detention to defendant’s defense counsel(§87). ⑸ Review of legality of detention by a court(§201). ⑹ Changes in indictment by the public prosecutor(§298). ⑺ Examine defendant, witness and evidence by the presiding judge(§287, §162, §292). ⑻ Exclusion of confession caused by duress etc.(§309) and rule of corroborating evidence of confession(§310). ⑼ Discrimination in probative value of evidence between protocol prepared by public prosecutor and that prepared by judicial police officer(§312). The first amendment of CPA(1961.9.1. Act No. 705) contained as follows: ⑴ Introduction of cross examination(§161–2) and alteration of method of examining defendant(§287). ⑵ Declaration of hear say rule(§310–2). ⑶ Introduction of evidence by which probative value of testimony may be argued(§318–2). ⑷ Alteration of appeal system such as jurisdiction of appeal court(§357, §371), structure of appeal instance, listing of reasons for appeal(§364①, §361–5). The third amendment of CPA(1973.1.25. Act No. 2450) resulted in follows: ⑴ Abolition of review of detention legality(§201). ⑵ Broadening of emergency detention and softening of prohibition of re–detention(§206). ⑶ Introduction of interrogation of witness(§221–2). ⑷ Adoption of summary trial procedures(§286–2). ⑸ Limitation of offences which can be committed to a court for trial for an application for complaint by high court(§260). The fifth amendment(1980.12.18. Act No. 3282) revived limitedly review of legality of detention by a court(§214–2①) and introduced presumption of innocence(§275–2). The sixth amendment(1987.11.28. Act No. 3955) expanded review of legality of detention by a court(§214–2①) and stipulated newly right of victim to state(§294–2). The most significant amendment in these days was occurred in 1995.12.29.(Act No. 5054). The important contents of that are as follows: ⑴ Introduction of arrest of suspect(§200–2). ⑵ Introduction of examination of suspect before issuing warrant of detention(§201–2). ⑶ Adoption of the release of the detained suspect under the condition of payment of bail money to guarantee appearance(§214–2④).