형사소송법 제312조 제1항의 적용범위 (Applicable scope of Clause 1 of Article 312 of Criminal Procedure Act)

서지정보

· 발행기관 : 한국외국어대학교 법학연구소
· 수록지 정보 : 외법논집 / 34권 / 1호 / 393 ~ 407페이지
· 저자명 : 정한중

초록

In this case, the Supreme Court decided that Admissibility of evidence on written statement of investigation against a defendant by the investigating official is being denied by quoting an account that right to silence was infringed on under the premise that the investigation against a defendant was allowed after the prosecution.
In this case, if a prosecutor once began investigation under his assumption that there is an alleged offense, the subject is changed to status of the accused(referring to Art.195 of Criminal Procedure Act), and even though the investigating official might have held certain purpose in addition to prosecution or evidence of the examinee, if the investigator was to carry out interrogation of related offense against the alleger, it leads to a fact of being a subject of right to silence. And then it is permissible to viewing in the way that admissibility of evidence was denied in the result of violating due process of law and the exclusionary rule.
But even if it can be said that due process of law including right to silence notification were taken up in connection with inquiry of the defendant after the prosecution, position of being a defendant is not equal to the other party at all and so its fair justice was apparently lost in the process of the investigation.
And there exist sufficient room to criticize or blame for violation of due process of law in the judgement of the subject and thus it is claimed that admissibility of evidence must be utterly denied.
In this case also, when a prosecutor prepared the written statement of a witness before the prosecutor carried out the written statement of investigation of the accused who had became a defendant, there is a room to interpret in its import that the written statement was deemed made of the accused who had became a defendant and the point of the fact is patient of being a rational judgement.

영어초록

In this case, the Supreme Court decided that Admissibility of evidence on written statement of investigation against a defendant by the investigating official is being denied by quoting an account that right to silence was infringed on under the premise that the investigation against a defendant was allowed after the prosecution.
In this case, if a prosecutor once began investigation under his assumption that there is an alleged offense, the subject is changed to status of the accused(referring to Art.195 of Criminal Procedure Act), and even though the investigating official might have held certain purpose in addition to prosecution or evidence of the examinee, if the investigator was to carry out interrogation of related offense against the alleger, it leads to a fact of being a subject of right to silence. And then it is permissible to viewing in the way that admissibility of evidence was denied in the result of violating due process of law and the exclusionary rule.
But even if it can be said that due process of law including right to silence notification were taken up in connection with inquiry of the defendant after the prosecution, position of being a defendant is not equal to the other party at all and so its fair justice was apparently lost in the process of the investigation.
And there exist sufficient room to criticize or blame for violation of due process of law in the judgement of the subject and thus it is claimed that admissibility of evidence must be utterly denied.
In this case also, when a prosecutor prepared the written statement of a witness before the prosecutor carried out the written statement of investigation of the accused who had became a defendant, there is a room to interpret in its import that the written statement was deemed made of the accused who had became a defendant and the point of the fact is patient of being a rational judgement.

참고자료

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