In the korean supreme court case in question, the fact needs to be reconsidered, that the prosecutor’s record containing the statement of witness that becomes the decisive evidence to prove the guilt was left out. Especially, even though the court judged that the chance of cross-examination was provided to the declarant of the record and there was no substantial violation of procedural rules, it could have assess the circumstantial guarantees of truthworthiness.
Every issue will be absorbed into the principle of free evaluation of evidence, if the admissibility of the prosecutor’s record is not considered. It is so hard to completely agree with the argument of the dissenting opinion in which in case of inconsistent statements more weight of reliability must be placed on a court testimony. It is because it is clearly in violation of the principle of free evaluation of evidence to simply more rely on a court testimony in case of inconsistent statement.
In light of the facts appearing in the case in question, it was possible to assess reliability of circumstances of statement separately from total consideration of reliability of evidences. Most of all, the witness’ statement before prosecutor should not have easily admitted when considering its’doubtful circumstances. Therefore, the courts, expecially the appellate court, should have closely examined the circumstances by having the persons related to the prosecutor’s interrogation take the stance. Because this process was left out, the requirement of the circumstantial guarantees of truthworthiness was not satisfied.

[대상판결] 대법원 2015. 8. 20. 선고 2013도11650 전원합의체 판결
  [판결요지]
  [공소외1 진술의 증거능력] 제1심인 서울중앙지방법원 2011. 10.31. 선고 2010고합1046 판결에서 발췌
 Ⅰ. 문제의 제기
 Ⅱ. 형사소송법 제312조 제4항 참고인 진술조서의 특신상태의 의미
  1. 형사소송법 제312조 제4항의 연혁
  2. 특신상태 요건의 해석
 Ⅲ. 대상판결의 분석 - 공소외1 검찰 진술조서의 증거능력 판단
  1. 성립의 진정
  2. 임의성
  3. 진술 내용의 부인
  4. 반대신문 기회의 보장
  5. 적법절차 위반
  6. 특신상태
 Ⅳ. 결 론
 [참고문헌]
 [Abstract]

• 강우예(한국해양대학교 해사법학부) | Kang Wu-Ye (Maritime Law Department Korea Maritime and Ocean University)