문서파일의 증거능력: 원세훈 사건 대법원 판결에 대한 평석을 중심으로

Abstract

This paper aims at refuting the stance of the Supreme Court regarding NIS(the National Intelligence Service)’s online intervention into presidential election of South Korea in 2012. That is, this paper is written to closely review the opinion of the Supreme Court which reversed and remanded the conviction of the appellate court on the alleged online intervention of Won Se-Hun, ex-chief of NIS, into 2012 presidential election, disallowing the admissibility of evidence for the core document file in terms of the criminal evidence rule. In the first part of this paper, facts charged are summarized and two pieces of core evidence in this case, that is, two document files are described closely. The full-scale analysis is in the second part of this paper. I analyzed the judgement of Supreme Court regarding admissibility as evidence of two document files in comparison with those of the trial court and the appellate court. I agreed to the stance of Supreme Court regarding application of Article 313, Section 1 of the Criminal Procedure Law, because I thought the Court’s interpretation of the provision was reasonable which accepted the authenticity only by court testimony of draftsman. Next, I criticize the opinion of Supreme Court that refused to apply Article 315, Section 2 of the Criminal Procedure Law, for two reasons: First of all, “coarse contents in document files” that might be a probable ground on which the Court refused to apply Article 315, is out of common-sense in this digital era; Also it lacks consistency since it does not correspond to the precedent of the Court itself. Lastly I refute squarely the standpoint of Supreme Court regarding applicability of documents as evidence. That is because the Court treated the documents as hearsay though it is a matter of proving the facts that do not satisfy “the connection with the facts to be proved” which is required to be excluded from evidence as hearsay. In the third part of this paper, the analysis result is summarized and I demonstrated that it was fully possible to acknowledge two document files as core admissible evidence and that there was a gross blunder in the Court’s reversing the decision of the appellate court which had made a close examination on that point.