공범인 공동피고인의 진술과 반대신문권의 실질적 보장

Abstract

The amendment to the Criminal Procedure Act of 2007 did not change the shape of he criminal court, although trial-centered clarification was the main principle governing criminal trials. Co-defendants as a accomplice are likely to shift their guilt to other defendants or to make false statements about the other co-defendant’s offense. Nevertheless, according to the Korean supreme court’s cases and court practice, the court statement of the co-defendant as a accomplice can be, of course, admitted as a criminal evidence, so it is not necessary to question the co-defendant as a witness. The statement of the co-defendant as a accomplice in front of a prosecutor is immediately admitted as a criminal evidence only by confirming the authenticity of the statement. It is the result of combining the habitual routine that used the questioning of the defendant as the method of evidence under the Old Criminal Procedure Law and the inertia that only the prosecution examination report of a suspect can reveal the truth without the questioning of witnesses in criminal cases. The court and prosecution statements of a co-defendant as a accomplice are easily admitted as the evidence on the basis of the questioning of the defendant. This is not only inconsistent with oral argument principle and practical direct examinaion principle, but also does not help reveal the truth in criminal cases. In particular, if we compare the prosecution statements of a co-defendant as a accomplice(the prosecution examination report on a co-defendant who is an accomplice) with the statement of a witness in front of a prosecutor, the prosecution examination report on a co-defendant who is not an accomplice, and the prosecution examination report on an accomplice accused in a separate case in terms of the admissibility of evidence, the court practice lacks theoretical consistency in that the prosecution statements of a co-defendant as a accomplice is admitted as the evidence without the cross-examination of the co-defendant as a accomplice from the co-defendant. The amendment to the Criminal Procedure Act of 2007 added the guarantee of the cross-examination of a witness as a requirement for the admissibility of evidence in the article 312 paragraph 4. Guaranteeing the opportunity of the cross-examination of a witness means guaranteeing the defendant the opportunity to question effectively the witness about the credibility of the testimony and the witness’s credibility. The admissibility of the court and prosecution statements of a co-defendant as a accomplice should be regulated legally by coinciding the purpose of the 2007 Criminal Procedure Act. Thus, the court and prosecution statements of the co-defendant as a accomplice is accepted as the evidence only if the defendant can cross-examine the co-defendant as a accomplice in the witness examination.