논문 상세보기
전자증거의 진정성과 전문법칙의 적용 KCI 등재
The authentication of electronic evidences and the application of hearsay rule of them in Korea
So-called Wang-jaesan decision (2013do2511) was declared by ‘Korean Supreme Court’ (hereafter ‘KSC’) in July, 2013. The decision had a lot of important substantial and procedural issues in criminal spheres. However, what I have tried to concentrate in this review are only two issues, the one is the issue of the authenticity of electronic evidence (or digital evidence), the other is the issue of the application of ‘the Korean version hearsay rule’ (hereafter ‘KHR’) of the electronic evidence. The methodology of this review is the comparative analysis of the Wang-jaesan decision from the perspective of Federal Rules of Evidence (hereafter ‘FRE’). In Wang-jaesan decision KSC defined the concept of integrity of electronic evidence as ‘the contents of the digital data have not been altered in any manner from the moment that were seized’ or ‘that evidence wasn’t changed after it was captured or collected.’ The meaning of this concept is different from the meaning of the traditional ‘exactness of utterances’(成立의 眞正) of article 312, 312 of KHR. That concept was made from the unique Korean modern legal history. However, it cannot deal with so many hard cases properly. Therefore I suggest in chapter Ⅰ, Ⅱ, Ⅲ, Ⅳ that We Korean legal scholars and practitioners should adopt the concept of authentication something like FRE, even though Korean Criminal Procedure Law does not have clear stipulations about it. In chapter Ⅴ, Ⅵ I did comparing analyses about the applications of KHR by KSC since 1990’s up to the 2010’s. I found that KSC has adopted enormously FRE when there were no clear stipulations in Korean Criminal Procedure Law. This is a kind of interesting phenomenon which deserves to be analyzed from the perspective of comparative law and global legal transplant of evidence rule.
1. 사실관계
2. 재판요지
[연 구]
Ⅰ. 전문예외요건으로서의 진정성립 개념과 구별되는 증거의 진정성 개념의 설정필요성
Ⅱ. FRE의 증거의 진정성 개념
Ⅲ. 전자증거의 진정성 개념
1. 일심회 판결과 왕재산 판결의 연속성
2. 무결성의 긍정례와 부정례
Ⅳ. 전자증거의 진정성(무결성) 입증방법의 다양성
Ⅴ. 전문법칙의 적용이 있는 전자문건과 전문법칙의 적용이 없는 전자문건
1. 전문법칙의 적용이 없다고 판단된 사안들
2. 전문법칙의 적용이 있다고 판단된 사안
3. 녹음테이프의 음성정보와 전문법칙의 적용
Ⅵ. 직접증거로 사용할 때 전문증거가 되는 증거라도 간접사실에 대한 정황증거로 사용할 수 있는가(긍정)
Ⅶ. 결 어
[참고문헌]
[Abstract]
