This research paper is a commentary on the Constitutional Court’s 2013.10.24. sentence 2011 Hunba 79 decision. The point issues of the Constitutional Court’s decisions are as follows. Whether it has violated the principle of definiteness, the principle of excess prohibition, and whether including the accomplice’s protocol of trial in the same article is a violation of the constitution. This writer is a testifier who has suggested a constitutional opinion in the Constitutional Court’s public defense. Therefore, there will be an annotation on the Court’s decision based on the written opinion which may agree with the Court’s basis of decision or have a different perspective towards it. The legislative intent of the provision 3 of Article 315 of the Criminal Procedure is to accept creditable papers with exceptions to the hearsay rule, allowing the trial procedure to get along smoothly and contributing to the finding of the truth of substance. Japan, on the other hand does not allow a protocol of trial from a different case to have admissibility of evidence. However, there is not a big difference in the procedure of deciding the actual admissibility. Similarly, the United States enumerates the exceptions to the hearsay rule, presuming it limitedly, but with multiple instances laid in the legislation, there is not much difference, compared to Korea’s criminal procedure, in how the evidence law is operated. In addition, the provision 3 of Article 315 of the Criminal Procedure is a regulation on the procedure for the preservation of evidence, not applied to the principle of definiteness. Also, the interpretation itself can concretely determine the range of application, therefore not a vague regulation. As seen above, the provision 3 of Article 315 of the Criminal Procedure does not transgress the principle of legal step or the principle of excess prohibition. In short, the provision 3 of Article 315 of the Criminal Procedure is constitutional, considering the legislative intent, comparison with foreign legislation cases, and juridical examination. Though the protocol of trial with an accomplice’s testimony is guaranteed to have a high level of ‘voluntariness’ and ‘due process’ because it is realized in the court before judges, considering the content, there may be a possibility of false testimony to shift responsibility on the defendant. In conclusion, this writer approves of the improvement of the legislation, for it is more desirable to have a definite legislation to guarantee people’s basic human rights and develop the code of criminal procedure based on the principle of constitutional state.

[대상결정] 헌법재판소 2013. 10. 24. 선고 2011헌바79 결정
  [사실관계]
   1. 사건의 개요와 심판의 대상
   2. 청구인의 주장요지
   3. 본안에 대한 헌법재판소의 판단
 [평 석]
  Ⅰ. 문제제기
   1. 본 헌재결정과 관련된 논점
   2. 형사소송법 제315조의 입법취지 및 필요성
   3. 형사소송법 제315조에 대한 구체적 검토
  Ⅱ. 전문법칙 및 그 예외에 대한 해외 입법례
   1. 일 본
   2. 미 국
  Ⅲ. 형사소송법 제315조 제3호의 명확성 원칙 위배 여부
   1. 명확성 원칙의 의의 및 적용범위
   2. 형사소송법 제315조 제3호의 명확성 원칙 위배 여부
   3. 소 결
  Ⅳ. 형사소송법 제315조 제3호의 적법절차 원칙 위배 여부
   1. 적법절차 원칙의 의의
   2. 적법절차 원칙과 반대신문권의 보장
   3. 형사소송법 제315조 제3호가 적법절차 원칙에 위배되는지 여부
  Ⅴ. 형사소송법 제315조 제3호의 재판청구권 침해여부
   1. 재판청구권의 의의
   2. 형사소송법 제315조 제3호에 의해 제한되는 재판청구권
   3. 과잉금지원칙 위배 여부
   4. 소 결
  Ⅵ. 결 론
  [참고문헌]
  [Abstract]

• 오경식(강릉원주대학교 법학과 교수) | Kyung Sik Oh