진술번복 증인에 대한 검사 작성 피의자신문조서에 관한 위법성판단과정에 대한 논증 검토 -대법원 2013. 8. 14. 선고 2012 도 13665 판결-

Abstract

This paper deals with the question of Precedents about Supreme Court Decision 2012Do13665 delivered on August 14, 2013. The Supreme Court decided that a protocol of suspect by prosecutor's questioning upon perjury suspicion against the witness who testified at a preparatory hearing or trial was summoned by prosecutor later and reversed his former testimony favorable to defendant was illegally obtained evidence and cannot be admitted as evidence because it is against a litigation structure under the current criminal procedure law focusing on parties, trial, and directness. It also violates a fundamental right under Article 27 of the Constitution a right to a trial with opportunity to attack and defend in trial where all evidences are investigated and stated before judge. However, I think that a protocol of suspect by prosecutor's questioning upon perjury suspicion against the witness be different with prosecutor's questioning of the witness. The quality of perjury investigation against witness is dissimilar to that of prosecutor's questioning of the witness who testified at a preparatory trial and reversed his former testimony favorable to defendant because it is a discrete procedure of investigation of perjury case comparing with the latter which is extensions to the original procedure of criminal cases. Both a litigation structure under the current criminal procedure law and a violation of Article 27 of the Constitution a right to a trial which are based on Supreme Court Decision about exclusionary rule are much obscure. Therefore, theycould bring about weakening of the criminal justice system and confusion of criminal evidence law. Seen from this point of view, illegality judgment should have careful, rational and convincing by strict interests-balance theory. In conclusion, Supreme Court Decision 2012Do13665 leaves the lack of clear standard of exclusionary rule and concrete argumentation of illegality judgment.