피해자 제출의 탄원서의 증거능력에 대한 소고 - 대법원 2024. 3. 12. 선고 2023도11371 판결의 검토 -

Abstract

Recently, the Supreme Court viewed the victim’s written statement as a Victim Impact Opinion and denied its admissibility as evidence. This article examines the Supreme Court’s decision. First, this article introduced the decision, focusing on the facts and progress of the trial. Before the discussion, this article outlined the victim’s status and litigation rights, especially Article 294-2 of the Criminal Procedure Act. Some suggest that Article 294-2 grants victims the right to request inspection due to its form and content. Still, this interpretation would not be accepted because Article 294-2 is the victim’s right to make statements during trial proceedings. Therefore, Article 294-2 should be viewed as part of the victim’s right to make a statement during the trial, and it is hard to conclude that victims have the right to participate in the criminal process. The documents written and submitted by victims would be evidence(hearsay) or a Victim Impact Opinion, depending on the details. If the documents contain information related to the facts of the indictment, it would be evidence(hearsay) and would not be accepted without the requirements of the Criminal Procedure Act. If the documents include matters other than the facts of the indictment, such as the content and extent of the damage, opinions on punishment, it would be the victim impact opinion and are not admissible as evidence according to the criminal procedure rules. The Supreme Court declared documents from victims a Victim Impact Opinion and denied the admissibility of evidence without considering the legal nature of the documents. However, the statement that the court mentioned in its decision should be viewed as substantially hearsay evidence, and its admissible as evidence according to whether the requirements of the Criminal Procedure Act are met.