증거법이론에 있어서 인식과 진술* - 증거법 일반이론의 모색 -

Abstract

This study starts with the assumption that the general theory of evidence law can be developed since evidence law has its own innate logic. Every country has its own evidence laws. So if there were a theory about evidence law and it could explain evidence laws of every country then it can be considered the general theory of evidence laws. The first concept of evidence laws in the general theory is the cognition. The jury trial system and bench trial system are different in the aspect that who recognize the evidence; the subject of cognition about evidences. In jury trial system the subject of evidence cognition is the jury. In bench trial system the subject of evidence cognition must be the judge; this is called ‘principle of directness.’ The exception of this principle of directedness is renewal of proceedings. In the renewal of proceedings, the judge accepts other’s cognition in the forms of protocol. Beweisfäigkeit(the qualification of evidence) is the competence to be legal evidence in fact-finding. It is the admissibility of evidence in jury trial system. In bench trial system it corresponds to legal competence to be written as evidence in judgement paper of guilty. Beweisfäigkeit has two dimensions: cognition and statement. Beweisfäigkeit is the qualification that the judge can accept other’s cognition as evidence, and Beweisfäigkeit is the qualification that judge can accept out-of-court statement as evidence. The latter is the hearsay rule. And the former is the evidence rule of all kinds of protocol. So the concepts of Beweisfäigkeit of cognition and statement are the systems of general theory about evidence law. If we look at evidence laws from this point of view, all evidence laws must be reviewed through the general theory; Special theories cannot be explained by other special theories.