전문법칙 적용범위 논의를 위한 몇 가지 고찰 - 기본 개념과 용어, 이론적 근거를 중심으로 -

Abstract

Fundamental concepts, terms and theoretical basis should be reexamined and be classified to avoid unnecessary complexity of a range of application of hearsay exclusionary rule. Admissibility under Anglo-American law, which is able to be translated permissiveness, connotes element of the Weight of Evidence. This term "Admissibility" is different with "Probative Value" under Criminal Procedure Act of Korea. Therefore, translation of "Admissibility" into "Probative Value" is inappropriate. Trustworthiness which means whether statements evidence is objectively true is a factor of the Weight of Evidence. The concept of this term "Trustworthiness" is same with that of "Trustworthiness" in the term "Circumstantial Guarantee of Trustworthiness". Several terms referring to Trustworthiness should be standardized. Trustworthiness in 'Lack of Trustworthiness', which is the majority theory as theoretical basis of hearsay evidence, needs to be disentangled with trustworthiness as a factor of the Weight of Evidence. Two conceptual elements of the Weight of Evidence are Trustworthiness and "Weight of Evidence in a narrow sense" which is the power confirmed by trustworthy evidences. Those are cleary disentangled and the one is decided after the other. The essential theoretical basis of hearsay evidence is the Danger of Error in Transmitting. The more important thing is that the danger of error in transmitting exists in not only hearsay evidence but also various documents, but rather more danger in documents. In comparison with original evidence which the judge listens directly from stater, inaccuracy of documenets could be occurred in several steps such as for investigator to understand after listening stater, to select the statement, and to compose statements on documents. The danger of error in transmitting of hearsay evidence is followed by two cases, one is nonexperienced person's statements and the other is recorded statements not statements in trial. Making a table with x-axis(record or not) and y-axis(experience or not) makes classification easy between hearsay evidence and re-hearsay evidence.