참고인 진술청취 수사보고서의 증거능력 (A study on Admissibility of Evidence of the Investigaion Report about the Testifier Recording Statement)

서지정보

· 발행기관 : 한국형사판례연구회
· 수록지 정보 : 형사판례연구 / 31권 / 437 ~ 468페이지
· 저자명 : 박정난

초록

In addition to the case, our court has regarded the investigation report as specialized document, which is hearing the testifier’s statement by phone and writing that contents under Article 313 (1) of the Criminal Procedure Act. The court has consistently excluded the admissibility of evidence of the investigation report because it does not meet the requirements of the above Article. However, the investigation report of the testifier written by the investigation agency under the investigating process by telephone, is not a document written in the private situation.
In other words, its form is ‘investigation report’, but the actual is a testifier statement, which can say as a modified reference statement.
Therefore, it is an exception to the hearsay rule, so Article 312 (4) of the Criminal Procedure Act should be applied, not Article 313 (1). Since the requirements for the admissibility of evidence to prove the evidence is more difficult in Article 312 (4) than in Article 313 of the Criminal Procedure Act, it is reasonable to apply Article 312 (4) of the Criminal Procedure Act to the defendant right to defend. On the other hand, the investigation report for recording the statement of the testifier is not written in the form of a ‘report’, and there is no signature or seal of the testifier who is the original speaker. It means that it does not meet the requirements of Article 312 (4) of the Criminal Procedure Act, so there is no admissibility of evidence.
However, unlike Germany, the Criminal Procedure Act does not have a testifier arrest system, so the testifier can freely refuse the summoning request of the investigative agency. Moreover, the witness examination request system of the Article 221-2 of the Criminal Procedure Act, which can be defined as a complementary measure, is not used in practice because the confidentiality of the investigation is not guaranteed. Although there are cases where the testifier’s statement is one of a lot of evidence, in some cases, the testifier’s statement is a decisive and important role to reveal the criminality of the suspect. In this situation, the statement of the testifier can be heard and borrowed in the form of an ‘investigation report’ to keep the record, even by telephone. In particular, if the testifier changes the statement in the court is not the same statement at the existing investigation stage, it is necessary to accept the admissibility of evidence of the recording investigation report of the testifier statement. In such cases, the testimony of the investigator who investigated the testifier is hard to be accepted its admissibility of evidence, because the requirements of Article 316 (2) of the Criminal Procedure Act are insufficient Therefore, it is necessary to find the truth by allowing the judge to review the investigation stage and reliability of court statements with free will, accepting the investigation report of testifier’s recording statement as evidence.
Nevertheless, it is necessary to supplement the circumstantial guarantee of credit, which is the exception to the hearsay rule. It seems necessary to be admissible the evidence of the investigation report or at least the statement recording itself only if the statement recording exists and the investigation report recorded as it is. However, the current Criminal Procedure Act system is difficult to recognize the admissibility of evidence of the investigation report of the testifier’s recording statement.
Therefore, it is necessary to consider the legislation seriously recognizing the admissibility of evidence under these requirements: referring to the Criminal Procedure Act 312 (4), recognizing the authenticity and special credibility of the testifier, and allowing the defendant to dissent the testifier.

영어초록

In addition to the case, our court has regarded the investigation report as specialized document, which is hearing the testifier’s statement by phone and writing that contents under Article 313 (1) of the Criminal Procedure Act. The court has consistently excluded the admissibility of evidence of the investigation report because it does not meet the requirements of the above Article. However, the investigation report of the testifier written by the investigation agency under the investigating process by telephone, is not a document written in the private situation.
In other words, its form is ‘investigation report’, but the actual is a testifier statement, which can say as a modified reference statement.
Therefore, it is an exception to the hearsay rule, so Article 312 (4) of the Criminal Procedure Act should be applied, not Article 313 (1). Since the requirements for the admissibility of evidence to prove the evidence is more difficult in Article 312 (4) than in Article 313 of the Criminal Procedure Act, it is reasonable to apply Article 312 (4) of the Criminal Procedure Act to the defendant right to defend. On the other hand, the investigation report for recording the statement of the testifier is not written in the form of a ‘report’, and there is no signature or seal of the testifier who is the original speaker. It means that it does not meet the requirements of Article 312 (4) of the Criminal Procedure Act, so there is no admissibility of evidence.
However, unlike Germany, the Criminal Procedure Act does not have a testifier arrest system, so the testifier can freely refuse the summoning request of the investigative agency. Moreover, the witness examination request system of the Article 221-2 of the Criminal Procedure Act, which can be defined as a complementary measure, is not used in practice because the confidentiality of the investigation is not guaranteed. Although there are cases where the testifier’s statement is one of a lot of evidence, in some cases, the testifier’s statement is a decisive and important role to reveal the criminality of the suspect. In this situation, the statement of the testifier can be heard and borrowed in the form of an ‘investigation report’ to keep the record, even by telephone. In particular, if the testifier changes the statement in the court is not the same statement at the existing investigation stage, it is necessary to accept the admissibility of evidence of the recording investigation report of the testifier statement. In such cases, the testimony of the investigator who investigated the testifier is hard to be accepted its admissibility of evidence, because the requirements of Article 316 (2) of the Criminal Procedure Act are insufficient Therefore, it is necessary to find the truth by allowing the judge to review the investigation stage and reliability of court statements with free will, accepting the investigation report of testifier’s recording statement as evidence.
Nevertheless, it is necessary to supplement the circumstantial guarantee of credit, which is the exception to the hearsay rule. It seems necessary to be admissible the evidence of the investigation report or at least the statement recording itself only if the statement recording exists and the investigation report recorded as it is. However, the current Criminal Procedure Act system is difficult to recognize the admissibility of evidence of the investigation report of the testifier’s recording statement.
Therefore, it is necessary to consider the legislation seriously recognizing the admissibility of evidence under these requirements: referring to the Criminal Procedure Act 312 (4), recognizing the authenticity and special credibility of the testifier, and allowing the defendant to dissent the testifier.

참고자료

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