탄핵증거이론의 재구성 - 미국과의 비교법적 고찰 -
Reconstruction of Impeachment Evidence Theory - A Comparative Study with USA -
최병천
초록
Korean Criminal Procedure Law § 318-2 provides that inadmissible hearsay evidence may be used as an impeaching one. And judicial precedents and studies on impeachment evidence theory are not rare. Nevertheless, impeachment evidence has not been applied so much in our criminal procedure. Even though a hearsay document becomes inadmissible awing to denial of authentication or truth by the person who made the statement on the hearsay document, virtually nobody tries to use that inadmissible hearsay evidence as impeaching one. In my opinion, such odd phenomenon happens because our impeachment theory that impeaching means attacking the probative power of statement does not conform to reality. Because the notion that impeachment evidence is for attacking the probative power of statement leads to the wrong conclusion that the existence or absence of charged facts can be proved by inadmissible evidence as a substantial one. If so, impeachment evidence as attacking the probative power of statement can not exist. It is obvious that such conclusion can not be allowed in our criminal evidence system. We have to comprehend impeachment evidence in a different way unlike traditional one. So I have studied and introduced American impeachment theory in considerable detail in this article. And I have found the conception on impeachment evidence much differs from that of USA. As our impeachment theory leads to the above wrong conclusion, the American impeachment theory may be selectively adopted in reconstruction of impeachment evidence system. The alternative for the conventional understanding of impeachment evidence must be founded on our own legal basis.