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사인작성 컴퓨터문서의 진정성립 입증과 증거능력 KCI 등재
Admissibility of Out of Court Private Statements Recorded in Computer file
According to the development of computer, many people recently record their statements with computer. Therefore new issue about the admissibility of the statements recorded in computer file floats on the legal horizon.
From the viewpoint of the anglo-american hearsay rule, this issue could be easily cleared by the rule and exception. In principle, hearsay rule say that out of court statements be inadmissible for the evidence of the truthfulness of the contents of the statements and call this out of court statements hearsay. Hearsay rule focuses on the statements, not the method by which this statements are recorded or transferred. As the result, the out of court statements recorded in computer file are hearsay when they are given as evidence for the truthfulness of the contents of the statements But hearsay rule know many exceptions which make the out of court statements admissible. At first, hearsay statements by the defendant are admissible as a exception of hearsay rule. Secondly, hearsay statements by the third party are admissible when there is necessity and guarantee of trustworthiness. There are many categories and general exceptions which represent this necessity and guarantee of trustworthiness.
On the other hand, there is another point for the admissibility of the evidence. It is the authentication. Authentication can be given by many methods, as example, by testimony of the declarant, by the testimony of the third party who knows the evidence or other objective materials.
From this point of view, we can consider § 313① and § 315 possible clauses for the admissibility of private statements in computer file. At first, § 313① require the authentication be made by the declarant's oral testimony. The Court says that this testimony is the one in which the declarant admit the statements to be made by himself. According to the explanation, the admissibility is decided only by the declarant's subjective admission. This result is unreasonable because the issue of admissibility should be decided by the objective facts. Therefore the testimony of the declarant in § 313① should be construed as all the statements in court and the authentication be decided by all the statements of the declarant in court objectively considered with other facts and materials.
And § 315. 3. provides general clause of guarantee of trustworthiness as exception of hearsay rule. This guarantee of trustworthiness as a condition for admissibility is relatively lower level of reliability than the reliability for the selection from the admissible evidences for trusting the facts asserted. The selection from the admissible evidences is for the fact finder, for example, trial jury. not for the leader of the procedure. But in the Court' decision, the Court seems to be unable to distinguish this guarantee of trustworthiness as a condition for admissibility from the issue of selection from the admissible evidences for trusting the facts asserted. So the Court's decision is inappropriate and the statements recorded in computer file should have been admitted.
【공소사실】
【쟁점증거】
【사건경과】
【평석】
I. 서
II. 컴퓨터 디스켓 내 문건의 성질과 증거능력 판단
III. 사인작성 진술서의 진정성립 증명
IV. 제314조의 적용여부
V. 제315조의 적용여부
VI. 결론
(영문초록)
