변호사 법률의견서의 증거능력과 형사소송법 제314조

Abstract

According to the majority opinion of the case concerned, a written opinion of counsel comes under a statement which is made by "any other person" under Article 313 of the Criminal Procedure Act. The majority opinion also determined that the written opinion is proven to be genuine by the counsel who wrote this statement, not by the defendant. In case where the counsel refuses to testify on the basis of Article 149 of the Act, however, the written opinion loses admissibility of evidence because Article 314 of the Act requires the counsel to make a statement in a preparatory hearing or a trial. On the contrary, the dissenting opinion of the case concerned accepted admissibility of the written opinion of counsel on the grounds that the written opinion is not subject to Article 314 of the Act because it is not hearsay evidence and the counsel's refusal to testimony, even if the written opinion is viewed as hearsay evidence, is subject to 'the cases where making a statement in a preparatory hearing or a trial is not possible' provided by Article 314 of the Act. The written opinion of counsel in this case included a statement on factum probandum regarding the defendant as well as the counsel's legal opinion. Due to the statement on factum probandum regarding the defendant, the written opinion in this case has value as evidence. Therefore, the written opinion of counsel should be considered as 'a written statement', not 'a statement which made by any other person,' under Article 313 of the Act. Furthermore, the issue on admissibility of a written opinion should be subject to the provisory clause of Article 313, Paragraph 1, not the first sentence of Article 313, Paragraph 1. Under this paradigm, the written opinion of counsel may have admissibility if the defendant, not the counsel who wrote the opinion, prove the written opinion to be genuine in a preparatory hearing or a trial. Unless the defendant, the original stater, makes a statement to prove the written opinion to be genuine, the written opinion of counsel cannot have admissibility of evidence even though the counsel makes a statement in a preparatory hearing or a trial. Under this circumstance, it is meaningless to research whether the counsel's refusal of testimony is subject to Article 314 of the Act because Article 314 requires approval of admissibility of the counsel's testimony as a prerequisite. Even though the counsel, as the majority opinion, is regarded as a person who can prove the statement to be genuine in a preparatory hearing or a trial under Article 313 of the Act, the counsel's refusal to testimony should not be subject to 'the cases where making a statement in a preparatory hearing or a trial is not possible' under Article 314 of the Act. If so, it is clear that a counsel under a similar case refuses to testify and it is not evitable to violate Unmittelbarkeit, the principle of examination of the court. In conclusion, it is not reasonable that the majority opinion, on the ground that the written opinion is considered as a statement which was made by 'any other person' not as a statement which was made by 'a defendant,' applied Article 313, Paragraph 1 of the Criminal Procedure Act with regard to admissibility of the written opinion of counsel. However, it is reasonable that the majority opinion did not view the counsel's refusal of testimony as 'the cases where making a statement in a preparatory hearing or a trial is not possible' under Article 314 of the Act and, accordingly, determined to deny admissibility of the written opinion of counsel. With regard to the dissenting opinion, it is not reasonable that the written opinion of counsel is not considered as hearsay evidence irregardless that the written opinion of counsel contained he statement of the defendant who experienced factum probandum, besides the counsel's legal opinion. It is worse that the dissenting opinion viewed the counsel's refusal of testimony as 'the cases where making a statement in a preparatory hearing or a trial is not possible' under Article 314 of the Act, overextended the application of this Article, and, finally, accepted admissibility of the written opinion.