Introducing hearsay rule in 1961, the words of provisions that provide the authentication and attendance of the declarant as exceptions of principle of the court's self-experience, were used as exceptions of the hearsay rule. It results in confusion of the elements of the hearsay rule with the elements of the authentication in the jurisprudence. Many literatures insist and place emphasis on the elements of the authentication as the elements of exceptions of the hearsay rule. With this confusion and misunderstanding, it became very difficult to understand the hearsay rule and many improper interpretations result from this confusion. In the future, the discussion which distinguish the elements of the hearsay rule from the elements of the authentication should be made actively and lead the academy and practice.

2006~2007년까지 2개년에 걸쳐 전국 8개도 27개 지역 28개 시험구에서 재배한 시료를 바탕으로 등숙기 온도가 벼의 등숙형질에 미치는 영향을 분석하고 식미치 향상에 적합한 등숙온도를 추적한 결과는 다음과 같다. 1. 출수기~출수 후 30일까지의 평균기온이 출수 후 40일까지의 평균기온 보다 벼의 등숙정도를 나타내는 현미 천립중과 식미치 변이를 더 잘 설명할 수 있었다. 2. 시험에 사용된 중만생종 벼 품종들은 출수기~출수 후 30일까지의 평균기온이 21℃ 이하일 경우에는 저온으로 등숙이 불량하였고 22℃ 전후에서 현미천립중이 최고를 나타내었으며 그 이상의 온도에서는 온도가 올라갈수록 현미천립중이 감소하였다. 3. 현미천립중이 최대가 되는 출수기~출수 후 30일까지 평균기온은 22.2℃ , 식미치가 가장 높았던 평균기온도 22.2℃ 로 같은 경향을 나타내었다. 4. 출수기~출수 후 30일까지 평균기온이 증가할수록 현미단백질 함량은 증가하였고 현미천립중이 증가할수록 현미단백질 함량은 감소하였으며, 현미천립중이 증가하면 식미치가 증가하였고 현미단백질이 증가하면 식미치가 감소하였다. 5. 식미치가 최고를 나타내는 출수기~출수 후 30일까지의 평균기온은 남평벼에서 22.1℃ , 일품벼와 주남벼에서는 22.5℃ 였지만 동진1호는 23.1℃ 로 다소 높았다. 6. 출수기~출수 후 30일까지 평균기온이 21℃ 이상인 경우 온도가 높아질수록 현미단백질 함량은 유의하게 증가하였고, 현미천립중과 현미단백질 함량과의 관계는 부의 유의성을 나타내었다. 7. 식미치는 현미천립중과 정의 유의성을 보였고 현미단백질 함량과는 부의 유의성을 나타내었다.

In this case, the appeal court says, the fact that the defendant used the privilege against self-incrimination and denied answering the questions of the police in the investigative process could not be used as evidence for evaluating the charge to the disadvantage of the defendant. This reference is appropriate. But the principle that we must not use the fact of no answer as evidence for regarding the assertion of the defendant as unreliable should not be confused as a principle that we must give an advantage to the no answer defendant. No answer could not prohibit the fact finder from infering truth from the indirect circumstantial facts. In this case, the defendant insisted that the drug in his body was not injected by him and he did not know how it was in his body. As two persons known visited him the day of arrest and he saw they put injectors in the waterpot, he thouhgt propably they injected the drug in his body in a stealthy way. But the defendant only insisted this story and did not give any clue with which this story could be checked up and for identifying the two persons. Therefore his assertion should be valued as unreliable because of the unreliability of the assertion itself, not because of the fact of no answer. And as the subjective factors as perception, intention, knowing etc could be infered by indirect factors, in this case, the fact that the defendant injected the drug voluntarily could be presumed from the fact that he was arrested in the intoxication in his room, there was none in his room when he was arrested, injectors were founded in his room. So the fact-finding of the court would be said inappropriate.On the other hand, the appeal court says, when the defendant decided to use the privilege against self-incrimination and not to answer, the police should immediately stop questioning. As in this case the police continued questioning, the interrogation is illegal. But this comment is inappropriate because the current criminal process law recognize the right to question to the public attorney and the police independently to the right of the defendant not to answer. Consequently the police can put questions to the defendant though he uses the privilege. But it is up to the decision of the defendant, whether he refuses all questions from the beginning to the end, or reply partly. As for ruling the interrogation, Korean law is different from the American law. Furthemore, in this case, the questions the police put to the silent defendant were for the name or for affirming whether the defendant would use the privilege or not. Because the questions are not for the fact for the defendant's charge, it would be not illegal with the viewpoint of American law.

In this case, the Supreme Court of Korea gives very important opinion for the evidence law in general, ① Lowering of the probative power of the statesment in the protocol of investigative agent in the light of the weakness of the written record ② Unrecognizing the proof value of the statements where the cross-examination lacks. First, With indicating the inaccuracy of the record in the light of statements in fact, lowering of the probative power of the statesments in the protocol of investigative agent in general is inappropriate. In order to complement such a weakness, the law provide the strict provisions for the protocol drawing up. Furthermore, this kind of view falls into difficulty in answer to the question, “Can be the lowering problems all solved, if we, for the complement of such weakness, record the total statements or record them in tapes or video tapes?” This problem is not for statement in the protocol, but for the probative power of the out of court statement. Probative power is the thing which should be judged in each case individually with considering total situation with relation to the situation in which the statements were made, contents of the statements and comparison with other evidences. By the way, the problem of confrontation has important meaning from the new tendency which views the problem in other way than hearsay approach. But the method of the Court leads to the confusion with the meaning or the standard because of the termonology which the Court has used, that is , substantial proof value and inadmissible. Recently, the problem of confrontation is understood as a procedural right of the defendant in the criminal procedure and there is an American approach and a European Union approach. In my opinion, Considering our constitutional provision and criminal procedure, the European Union solution is proper. The admissiblity of the statements made in the situation in which the defendant cannot confront the speaker should be judged be the standard of the fairness of the process, that is, the question, “Would it harm the fairness of the process in the whole to admit the statements?” By the judgement, it would give an important ground to see the resposibility of the investigative agent for the nonconfrontation situation. But the responsibility of the investigative agent should not be an absolute ground for the inadmissibility of the statements, but would be the ground for prudent judgement of the probative power considering whether the substantial parts of the statements could be confirmed by other materials, when the statements are the only one important evidence to support the charge. Furthermore, Because the time of the confrontation is not limited to the trial, it would be useful to evaluate the provision in our criminal procedure for the interrogation with confrontation by the public attorney and investigative officer and to use it as a meaningful tool for guaranteeing the chance of confrontation of the defendant.

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.

Recently, many people live or travel abroad by various reasons. In this global era, we cannot only require the witness to come to homeland for testifying in court. It is necessary to provide a new method to take a reliable evidence which can solve the case with the witness staying abroad. In this case, the Prosecutor's Office try to give a new method by requesting the Consul in Japan to hear the witness and record the statements. According to the Vienna Convention on Consular Relations, Consul can hear the people of the Consul's nation. German Consular Relations Law provides that the admissibility of out of court statements recorded by Consul is regulated according to the institution which makes the request. Therefore, if the request comes from court, the statements recorded by the Consul according to the request are treated as statements recorded by Judge. From this point of view, the Prosecutor's Office insisted that the out of court statements recorded by Consul in Japanese be treated as the out of court statements recorded by Judge in deciding the guarantee of trustworthiness. But the Court construed that the statements recorded by Consul as the statements recorded by private person. Worse than this, the Court denies the guarantee of trustworthiness as the condition for the admissibility for the evidence. But 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 this case, 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 by Consul should have been admitted.

On the evidence for the impeachment, in literature, four problems are in discussion. At first, whether a hearsay evidence is admissible for impeachment, although it is not admissible in view of the hearsay rule. Second, whether the oral evidence of the defendant in trial is impeachable, and whehter the defendant's pre-trial statements protocol of the police is admissible for impeaching the oral evidence of the defendant in trial. At last, whether the authentification is required for the admissiblity of the hearsay written statement for impeachment. For first problem, though a hearsay evidence is not admissible according to the hearsay rule, it is admissible for impeachment. The hearsay rule is operated only where pre-trial statement is produced for asserting the truth of the statement. Because impeachment is not asserting the truth of the pre-trial statement, but swaying the crediblity of the oral evidence in trial, hearsay rule is not operated when the evidence is produced for impeachment. For second problem, the oral evidence of the defendant in trial can be impeached for the appropriate way of truth-finding. In practice, the prior inconsistent statement of the defendant can be often used for impeaching the oral evidence of the defendant in trial. § 312 ② of the Korean Criminal Procedure Act provides that the defendant's pre-trial statesments protocol is not admissible when the defendant or the counsel of the defendant denies the truth of the statesment. Because of the provision, some say that the defendant's pre-trial statesments protocol is not admissible for impeachment when the defendant or the counsel of the defendant denies the truth of the statesment. But the Court admits the defendant's pre-trial statesments protocol although the defendant or the counsel of the defendant denies the truth of the statesment, and it is with me on that. For the last problem, the majority in literature and the Court are with the opinion that the authentification is not required for the admissiblity of the hearsay written statement for impeachment. In this point I cannot agree with the Court. The requirement of the authentification is essential for producing all the evidences. It is a different rule from the hearsay rule. In my opinion, It could be said that the majority and the Court confuse the difference. It should be said that a hearsay written statement cannot be used for impeachment when it is not authentifcated.

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.