증거능력 없는 진술조서에 대한 증거동의- 대상판결: 대법원 2019. 11. 28. 선고 2013도6825 판결 -

Abstract

The investigative agency investigated those who could interrogate as witnesses in the trial in advance without any particular reason and prepared a witness statement protocol. The Supreme Court did not recognize the protocol's evidence admissibility. The reason for this protocol is that the prosecution can use its authority as an investigative agency to unilaterally create evidence unfavorable to criminal defendants outside the court, thus violating the right to a Fair Trial, adversary system, principle of court-oriented trials and direct cross-examinations. The supreme court stated that the protocol in this case cannot be acknowledged as evidence for the violation of various principles and legal procedures stipulated under Constitutional Law or Criminal Procedure Codes. However, Article 312(4) of Criminal Procedure Act limited to the protocol, and as the general principle of evidence rules, Article 308-2 stipulates the ‘due process’ to be a requisite for the acknowledgement of the admissibility of evidence. Article312(4) stipulates that protocol not prepared in accordance with due process and appropriate method cannot be admitted to the admissibility of evidence. On the other hand, Article 308-2 stipulates that all evidence that violates due process is not capable of proof. In addition, it is reasonable in the system of the Criminal Procedure Act to distinguish the 'due process and appropriate methods' as stipulated in Article 312(4) from the 'due procedure' specified in Article 308(2). Therefore, it is reasonable to understand the 'due process and application methods' of Section 312(4) only on the legality of how the protocol is written. I think this judgement understands that the violation of the right to a Fair Trial, the violation of adversary system, principle of court-oriented trials and direct cross-examinations, is a violation of Article 308-2's. Meanwhile, the Supreme Court ruled that evidence without evidence admissibility, such as this case's protocol, is exceptionally recognized if the defendant agrees to be evidence. Where the evidence is hearsay evidence, the admissibility of evidence shall be recognized by consent under Article 318(1) of the Criminal Procedure Act. However, if the evidence is 'evidence illegally obtained' as stipulated in Article 308-2 of the Criminal Procedure Act, it is a firm position in the Supreme Court's case that consent does not recognize the admissibility of evidence. In conclusion, the Supreme Court identifies this case protocol as 'evidence illegally obtained' in violation of the due process, but with consent, the protocol is recognized as evidence. The position of this case judgement is not valid because it does not conform to the consistent position of the existing Supreme Court precedents, as well as to the criminal procedure system or legal principles.