형사소송법 제310조의2의 적용 기준과 범위에 관한 소고

Abstract

The article 310-2 of criminal procedure law regulate "the documents which take theplace the statements of preparation of a trial or a trial date and the statements which include other’s statements can not be used for evidence except for regulation from article 311 to 316"under the title of "hearsay evidence and the limitation of admissibility of evidence". This meansthat the evidences which have the admissibility of evidence in the hearsay evidence are limited tothe evidences which regulated at article 311 to 316, so another hearsay evidence do not have theadmissibility of evidence. In principle, hearsay evidence does not have the admissibility of evidence,we know that exception of hearsay rule is limited very strictly such as the regulation from article311 to 316. So the article 310-2 is a very important regulation which limits the analogical application ofexception of hearsay evidence. But under the consideration of the complexity and reality ofoccurrence of the new form of hearsay evidence, I think it is difficult to interpret that the article310-2 disallows all the analogical application of exception of hearsay evidence. I think it isdesirable that we establish a standard of analogical application because analogical application ofexception of hearsay evidence obviously allowed. Although that standard is abstract a little, that isbetter than impromptu and separate allowance for drawing consistent conclusion. It is sorry thatthe article 310-2 does not mention about the standard of analogical application. For these reasons, I made a standard of analogical application of exception of hearsay evidence,and examined admissibilities of some evidences. As a result, the record of confiscation can take theadmissibility of evidence under the analogical application of the article 312 section 6, but the recordof examination of a suspect, the record of investigation and the hearsay statement of accused cannot take the admissibility of evidence through the analogical application of the article 312 section 1or 6, 316 section 2 etc. However, they can take the admissibility of evidence through thesynonymy about the evidence. To conclude, I hope that the standard of analogical application iscontinuously complemented by studies, and deeper studies for many hearsay evidences I have notdealt with this study go on.