[판례평석] 자신의 형사사건에 관한 증거인멸죄의 성립 여부에 대한 실효적 해석 - 대법원 2018.10.25. 선고 2015도1000판결을 중심으로 -

Abstract

The destruction of evidence is intended to prohibit interfering with the judging function of the state by punishing acts such as destroying evidence in a criminal or disciplinary case of another person. However, in certain cases, the right of defense in terms of protection of criminals is also admitted. In particular, destruction of evidence related to one’s criminal or disciplinary case, not only is it not the subject of this crime, but also self-interest in the case of an act such as destruction of evidence of an accomplice’s criminal or disciplinary case. It is a clear precedent attitude that the true sin cannot be established when it is intended to be done. On the other hand, the attitude of the precedent that considers that an abettor for destruction of evidence is established when an abettor teaches another person to destruction of evidence related to one’s criminal or disciplinary case. The logical consistency is lacking in comparison with the precedent’s position that it is impossible to punish an act such as destroying the evidence with another person. Could it be that an abettor who makes a decision to commit a crime without dominating the conduct of the abettor is never more illegal than co-principal offender who completes the crime by functionally controlling the entire crime? In this way, in the crime of destroying evidence, whether the form of participation in the crime was an abettor or a co-principal offender was the key to discriminating the guilt of the charges of destroying evidence. Since Supreme Court 2018.10.25. the 1000 judgment in 2015, the accused of destroying evidence have been convicted in practice by claiming that they are co-principal offenders who played a key role in the entire process of destroying evidence. In other words, it is a paradox that the criminal is convicted of innocence by claiming that he has committed an act of destroying evidence on his own. The attitude of the current case law that treats the crime of evidence destruction differently depending on the type of participation in the crime needs to be reinterpreted in a direction consistent with common sense.