공범에 대한 피의자신문조서의 증거능력 소고(小考)

Accomplice is ‘any person other than the defendant’ in Article 312 ④ of the Criminal Procedure Act, not ‘the defendant’ in Article 312 ①, ③. So the protocol of a suspect-examination where a statement of accomplice is recorded may be admitted as evidence as follows. (1) when accomplice is not a co-defendant, the evidential admissibility of that protocol is judged on the basis of Article 312 ④. But (2) when accomplice is a co-defendant, the evidential admissibility of it is judged on the basis of Article 312 ③ or ④. In other words, if that protocol was drawn up by public prosecutor, the evidential admissibility of it is judged on the basis of Article 312 ④. if it was drawn up by judicial police officer, Supreme Court says, it may be admitted as evidence on the basis of Article 312 ③. The place of Supreme Court can be evaluated as the result of analogy out of consideration of the defendant's profit. Nevertheless, we shall consider doing away with the distinction in the requirement of evidential admissibility between a protocol drawn up by public prosecutor and a protocol by judicial police officer(de lege ferenda).