정당하지 아니한 증언거부권 행사와 형사소송법 제314조의 진술불능사유 - 대법원 2019. 11. 21. 선고 2018도13945 전원합의체 판결의 근거를 중심으로 -

Abstract

The Supreme Court ruled in [The Supreme Court's May 17, 2009 Sentencing of the Consensus 2009] that a witness who appeared in court exercises the right to refuse to testify and refuses to testify in accordance with Articles 148 and 149 of the Criminal Procedure Act when he or she is unable to make a statement for any other reason equivalent to Article 34 of the Criminal Procedure Act. However, the Grand Court's ruling (Decision of the Supreme Court's en banc on November 21, 2018 by the Supreme Court) ruled that neither the witness's right to refuse testimony nor the right to refuse testimony falls under Article 314. According to this conclusion, if the witness exercises his right to refuse testimony, the capacity of evidence shall be recognized only in accordance with the provisions of Articles 312 and 133, and the capacity of evidence shall not be granted by indirect means under Article 314. In other words, the Supreme Court seems to have decided that stricter interpretation is necessary because Article 314 is a double exception rule that seeks to grant exceptional capacity to Hearsay documents under Articles 312 and 313, which have given exceptional capacity to Hearsay evidence. Hearsay Rule means that Hearsay is not evidence. It is natural to require a strict interpretation for Hearsay evidence to be used as evidence. The Criminal Procedure Act recognizes a wide range of exceptions to recognize the capacity of evidence for Hearsay evidence, from Article 311 to Article 316, While Article 310 says that Hearsay evidence does not have the capacity for evidence. Article 314 of the Criminal Procedure Act is a regulation that once again seeks to give the capacity of evidence to Hearsay documents that fail to meet the requirements of Articles 312 and 313. This regulation acts as a positive factor in the request for substantive truth finding, but as a negative factor in the defendant's right to defend, oral and substantive direct interrogation, and the Right of cross Eximination Thus, there is a request for the theory of interpretation to present normative limits for the discovery of substantive truths and the protection of defendants' right to defend themselves, which in turn can be said to be a question of how to set the boundaries between the acceptability of Hearsay evidence and the risk. From this point of view, the Supreme Court's conclusion that the exercise of the defendant's right to refuse to testify does not constitute an impossibility of statement under Article 314 of the Criminal Procedure Act, regardless of whether the event is justified, is valid as it presents normative limits for the discovery of substantive truth and the guarantee of the defendant's right to defend himself.