형사소송법 제312조의 영상녹화물의 증거능력

Abstract

In Korea there was a substantial change in criminal procedure act since 1.1. 2008, The new type of system was introduced to the revised criminal procedure act, especially that is the induction of the cinematographic work system in time of examination of a suspect or witness. As a symbolic matter, prosecutor interrogation is microcosm for some of our most fundamental conflicts about the norms that should guide state conduct, particularly manipulative, deceptive, and coercive conduct in the modern era. In short, prosecutor interrogation and confession-taking go to heart of our conception of procedure justice system and society we wish to have. The induction of the cinematographic work system is the form a link in the chain of this program. The ultimate goal of law and the criminal justice system would be the realization of justice. There has been big difference between prosecution and court to construe the Korean criminal procedure act §312. But we should think over the background that the cinematographic work has been introduced to criminal procedure act. At first, the general rule excluding hearsay evidence cannot be fully understood without a clear understanding of what hearsay is. Written record by the prosecutor is a example of hearsay. The cinematographic work system is only complementary of written record by the prosecutor. To allow admissibility of evidence of cinematographic work is confusion of the means with the end that statement has been transmitted without distorting a fact. Second, cinematographic work is the measures to keep watch on the investigation agency. So cinematographic work has to be functioned as observation measures. Third, the material truth is not objective or substantial in the view of natural science, but the judgement of mutual subjective and normative. Cinematographic work is not measures directly to prove the truth. Fourth, In Korean trial criminal procedure, in case of witness examination, each party was called for matters subject to examination by the full bench, and there were many cases that the content of examination is detailed, but answer is short, for the most part only 「yes」 or 「no」 can be chosen. In these cases it is very difficult to prove the change of statement by cinematographic work. Fifth, to wipe out the distrust of people's so called protocol trial, It couldn't consent to grant admissibility of evidence of cinematographic work. According to the view of revised criminal procedure act, the cinematographic work is to used the measures only to recall to witness's mind. Sixth, the cinematographic work is a possibility with a great potential of conviction, without regard truth or falsehood. In conclusion, If the cinematographic work would be allowed the admissibility of evidence or impeachment of witness or accused, it is inconsistent to the sprit of revised criminal procedure act and the idea of oral statement.