개정 형사소송법상 공동피고인의 피의자신문조서의 증거능력 ― 피의자신문조서 관련조항의 해석을 중심으로 ―

Abstract

2020.2.4. The amended Criminal Procedure Law (Act No. 16924) unified the evidential Admissibility system of the Suspect-Interrogation Protocol recoded by the investigative agency regardless of the author. This amendment was made under the intention of strengthening the principle of court-oriented Trials and direct cross-examination through the resolution of the difference in the Admissibility of evidence in the Suspect-Interrogation Protocol by investigation agencies and the guarantee of human rights. Accordingly, by reviewing the theories and precedents regarding the evidential Admissibility of the Co-defendant's Suspect-Interrogation Protocol, which was discussed on the premise of the dualization of the evidential Admissibility system of the Suspect-Interrogation Protocol under the current Criminal Procedure Law, the amended Articles of the Suspect-Interrogation Protocol I tried a new interpretation of. ① In the interpretation of Article 312 (1), (3) and (4) of the Suspect-Interrogation Protocol under the amended Criminal Procedure Law, the exceptions to Hearsay Rule do not prejudice the principle of court-oriented Trials and direct cross examination, and are accompanied by these principles. Consideration should be given to the fact that it contributes to the exercise of the right to proper punishment through the discovering objective facts. ② Article 312 (1) of the amended Criminal Procedure Law deleted the phrase “a criminal defendant when the criminal defendant was the stage of criminal suspect” and newly added the phrase “the criminal defendant, who was the suspect at the time”. The same interpretation of the phrase “the criminal defendant, who was the suspect at the time.” in the two Articles is in line with the purpose of unification of the evidential Admissibility system. ③ “the criminal defendant, who was the suspect at the time” means the defendant, and the Co-defendant does not. Therefore, the evidential Admissibility of the Co-defendant's Suspect-Interrogation Protocol shall be determined on the basis of Article 312 (4). As a result, the Co-defendant's Suspect-Interrogation Protocol is treated as a testifier's Protocol of statement. This is because the exceptional recognition of evidential Admissibility of Hearsay documents subject to the defendant's guarantee of the right to cross-examine against the Co-defendant not only meets the purpose of the Hearsay Rule, but can also be said as a reasonable balance between the principles of due process and th principles of truth-finding. However, in consideration of the defendant's position as a Co-defendant, the cross examine should be conducted by separating Oral-proceeding, such as practice and precedent, and giving the Co-defendant a status as a witness.