피고인의 공소사실과 관련한 공동피고인에 대한 경찰작성 신문조서의 증거능력 -왜 제312조 ‘제4항’이 아니라 ‘제3항’을 적용하는가?-

Abstract

In 2007, the Code of Korean Criminal Procedure had been revised on a large scale. But a lot of interpretative problems surrounding the protocol prepared by public prosecutor or judicial police officer have remained in the reformed Code of Korean Criminal Procedure. In the Code of Korean Criminal Procedure, the interpretative controversy over the admissibility of evidence about the police's protocol of examination against codefendant is a typical example of those problems. In the first place, with this matter, the applicable clauses are Article 312③ that "a protocol prepared by any investigative institution other than a public prosecutor for examination of a suspect is admissible as evidence, only if it was prepared in compliance with the due process and proper method and the defendant, who was the suspect at the time, or his defense counsel admits its contents in a preparatory hearing or a trial" and Article 312④ that "a protocol in which a public prosecutor or a judicial police officer recorded a statement of any person other than the defendant is admissible as evidence, only if it was prepared in compliance with the due process and proper method, it is proved by a statement made by the original stater on a preparatory hearing or a trial, a video-recorded product or any other objective means that the contents of the protocol are the same as what he stated before the public prosecutor or judicial police officer, and the defendant or his defense counsel has an opportunity to examine the original stater in relation to its contents in a preparatory hearing or a trial: Provided, That it is admissible only when it is proved that the statement recorded in the protocol was made in a particularly reliable state". But, as stated above rulings, the Korean Supreme Court makes a application of Article 312③ over the admissibility of evidence about the police's protocol of examination against codefendant. This application of a law can be understand in an inevitable interpretation considering the specific relation of the codefendant to the defendant.