형사소송법 제56조는 공판기일의 소송절차에 관한 것으로 공판조서에 기재된 것은 그 공판조서만으로 증명한다고 규율하고 있다. 이는 증거가 치 판단에 대해 자유심증주의를 채택하고 있는 형사소송법의 중대한 예외이다. 위와 같은 공판조서의 배타적 증명력 규정은 상소심에서의 소송 경제를 위한 입법적 결단이라 할 것이다. 공판조서의 배타적 증명력은 공판기일에서의 소송절차에 관한 사항에만 인정된다. 사건의 실체적 내용에 관해서는 배타적 증명력이 인정되지 아니한다. 그 밖에 공판조서가 존재하지 아니하는 경우, 멸실된 경우, 권한 없는 자에 의하여 작성된 경우, 소송관계인들의 이의제기가 있는 경우나 피고인의 공판조서열람권이 침해된 경우, 그리고 공판조서가 위조·변조·허위기재된 경우 등에도 배타적 증명력이 부정된다. 한편 대법원은 공판조서에 명백한 오기가 있는 경우 그 공판조서는 올바른 내용대로 증명력을 가진다고 판시함으로써 제56조의 해석론에 관한 큰 전기를 마련하였다. 위 판례는 공판조서의 배타적 증명력을 다투려는 시도를 계속 부인해 온 그간의 입장으로부터 진일보한 것으로 평가할 수 있다. 공판조서의 근본적인 한계는, 그것에 실제 형사절차에서 있었던 모든 사건을 있는 그대로 기재할 수 없다는 점이다. 따라서 공판조서의 정확성과 신뢰성을 높이려면 공판정에서의 속기·녹음·영상녹화를 보다 활성화할 필요가 있으며, 필요한 경우에는 속기·녹음·영상녹화로 공판조서를 보완·수정하는 것도 가능하도록 해야 한다. 그리고 국민참여재판의 배심원들은 공판조서의 배타적 증명력에 구애받지 않고 평의·평결· 토의할 수 있도록 하는 것이 타당하다.

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.

In accordance with the provision of Article 308–2 of Criminal Procedure Act, any evidence obtained in violation of the due process shall not be admissible. This Article newly inserted by Act No. 8496, Jun. 1. in 2007. Since then, there has been a series of a decision on the evidence, including the exclusionary rule, the fruits of poisonous tree doctrine, and the circumstance that would give exceptionally the admissibility of secondary evidence. In addition, there were a number of decisions that required to be prepared in compliance with the due process and proper methods in giving the admissibility of evidence in relation to the protocol, etc. prepared by prosecutor or senior judicial police officer. As a whole, due to the influence of making a stipulation of the exclusion of evidence illegally obtained, it is clear that the case law in the field of evidence law is proceeding in a direction to emphasize the guarantee of the due process. And in accordance with the provision of Article 314(Exception to Admissibility of Evidence) or 316(Statement of Hearsay) (2), in the case of Article 312 or 313, if a person who is required to make a statement at a preparatory hearing or a trial is unable to make such statement, which is impossible to exercise the right of cross–examination, the relevant protocol and other documents shall be admissible as evidence: Provided, that this shall apply only when it is proved that the statement or preparation was made in a particularly reliable state. In relation to the above provisions, court’s decision maintains a more rigorous interpretation as a requirement for admissibility of hearsay evidence. In addition, court’s decision seems to be proceeding to apply strictly requirements for admissibility of evidence of documents or output from the digital storage media, explaining the requirements of seizure and search of digital storage media in response to overall scientific and information– oriented society. And the recent decision describes the problem of establishing the judgment criteria of scientific evidence as a solution to the problem of misuse of science among the problems in the process of interaction between science and law in accordance with the criminal case. In conclusion, it is still a question of how to realize concretely the general principle that the two sets of demands, namely the discovery of substantive truths and the protection of the human rights of defendants (the guarantee of due process and the deterrence of illegal investigation) under the exclusionary rule.

In 2007, the Criminal Procedure Act has been changed into actually new law reflecting the social demands to protect the rights of defendants and suspects in the criminal procedure. The Criminal Procedure Act was revised in 2011, adding the relevance as a requirement of seizure and specifying the range and method of seizure or search on digital evidence. And it supplemented the method of proving the authenticity of digital evidence with some amendments in 2016. It can be said that it has continued to influence the Supreme Court precedent and the precedent also influenced legislation and investigation practice and led to change. This article examines the trends of major cases in the proceedings and evidence law since 2007. The Supreme Court’s cases on investigation procedures and evidence law have consistently emphasized the due process principles of the Constitution and the Criminal Procedure Law, and apply strict standards for existing practices throughout the investigation process including voluntary company, arrest, interrogation, and occasionally have suggested standards and directions of practice from the perspective of judicial control. In particular, in 2007, the Supreme Court ruled that the exclusionary rule of illegally obtained evidence was applied to use of material evidence and the evidence that was illegally collected by the investigating agency in violation of the due process could not be used as evidence of guilt in principle. In the exceptional case that the procedural violation is not equivalent to the violation of the substantive contents of the due process, and the exclusion of the evidence is against the harmonization of the due process and substantive truth in the Constitution and the Criminal Procedure Law, the evidence can be used. Thereafter, the Supreme Court has elaborated the criteria and exceptional jurisprudence on the illegally obtained evidence through various precedents. Since 2007, there have been important precedents related to the seizure of digital evidence, the authenticity and exceptional application of hearsay rule on digital evidence, and specific precedents on the interpretation and standards of exceptional application of hearsay rule of the revised Criminal Procedure Act, which were also the starting point of a new discussion. And this article suggests that, for right judicial justice, the two axes of the due process principle and the request for the discovery of the substantive truth should be mutually realized in harmony rather than abandoning any one.

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.

The Criminal Procedure Act of Korea has not had an explicit provision for the right to the presence of counsel during interrogation until the Article 243-2 of the revised Act took effect on and after January 1, 2008. Whether being in custody or not, a suspect is entitled to have counsel present during interrogation. But while the right to counsel has been the constitutional right, there was discussions on the content and extent of the right. the Article 34 of the previous Act provided the right to counsel for only a suspect in custody and the Article 243 of the previous Act had prescribed only an investigation officer or policeman as those who could be present during interrogation. So the question that a suspect could have a counsel present during interrogation was raised in the practice and the academic circles of law. Many of them had denied the right to the presence of counsel during the interrogation. In November 2003, the Supreme Court of Korea had held that a suspect in custody had the right to the presence of counsel during interrogation. And in September 2004, the Constitutional Court of Korea had determined to confer the right on a suspect without custody. There were advances of the right to counsel through these decisions in Korea. After the 2007 criminal procedure reform, the Act has an explicit provision for the right. Therefore, a suspect is entitled to have a counsel present during the course of investigation and is allowed to get advice from the counsel. Also the counsel is allowed to be present with the client during interrogation. However, unlike the right of a suspect, the right of a counsel is not granted by the Constitution of Korea but by the Criminal Procedure Act of Korea.