증거동의에 관한 변호인의 의사표시와 그 효력 - 일본의 最高裁․高裁판례를 소재로 -

Abstract

The Korean Criminal Procedure Law Article 318, Clause 1 prescribes that even if hearsay evidence to be used as evidence by evidence agreement of Parties. The defense counsel hold comprehensive power of attorney. But, the right of evidence agreement is invested in the defendant. Therefore, evidence agreement by the defense counsel is not allowed to follow no overt or implied intention of defendant. A juristic act of the defense counsel what he(she) agreed to all documents or objects requested by prosecutor supply reasonable ground for doubt against defendant's will actually. In case that considerable doubt that agreement opinion of the defense counsel is against defendant's will occurs, it causes doubt in the effectiveness of agreement opinion of the defense counsel. Therefore, it is illegal to choose it for evidence as agreement document. Although the precedents of Japan mentioned in this article judge it considering the process of lawsuit after agreement because they are all those of the appellate court, as the original trial court judging in the stage of agreement of the defense counsel, in case that the defense counsel agrees to important evidence when the defendant denies it, it is thought that response is required such as checking defendant's intention actively in addition to defense course of the defense counsel. When it comes to judge the effectiveness of agreement opinion of the defense council, it is not adequate to judge with external reason such as difference of defendant and defense counsel's contestation method(acceptance of a legal suit attitude), but, like Japan high court precedent, aggressive response judging through evidential contents are proper. Under the existing Criminal Procedure Code is based on adversary system, it is not adequate that judge intervenes actively. Yet, in case that defense counsel faces lawsuit considered inappropriate or insufficient, it is thought that playing a role like guardian is inevitable in defense right guarantee of defendant. Evidence agreement has decisive meaning in the result of later hearing. therefore, defense counsel must ascertain defendant's intention, and have a careful attitude stating defendant's opinion of agreement or nonagreement with defense course that defendant is convinced