개정형사소송법의 증거개시 조항에 대한 비판적 고찰

Revised Korean Criminal Procedure Law of 2008 has a lot of adversarial features. One of the remarkable features is an adoption of Anglo-American style discovery and disclosure. In Part Ⅱ, I analyze the relationship between the constitutional court's decision of 1997 and the provision of newly revised criminal procedure law's discovery clauses. In Part Ⅲ of this article I explore the basic features of the provision of newly revised criminal procedure law's discovery clauses, and Part Ⅳ reviews various interpretational issues. Korea's new rule follows a global trend of expanded prosecutorial discovery in criminal cases. Prosecutors are bound, upon request, to disclose all exculpatory evidence that they are going to use at trial. This article addresses the provisions and ramifications of the new reciprocal criminal discovery rule in Korea. Although the rule provides for a “two-way street", its significance lies in its expansion of discovery by the criminal defendant. In Part Ⅴ, I tried to criticize legislative failures and flaws. A relevant discussion will be provided of the history of criminal discovery, development and present status of the rule in Korea, and a prediction of what Korean practitioners are now facing. In Part Ⅵ, I summarized my findings and proposes actions that police, prosecutors, and defense attorneys should take to ameliorate the problem. Above all, I concluded that the more strong sanctions for prosecution's violations of criminal discovery rules should be added.