헌법재판소 결정을 통해서 본 증거개시제도의 운영방안 연구

On June 24, 2010, the Constitutional Court ruled, from Yongsan incident case, that when another court had already judged on government's refusal of discovery, the Constitutional Court will not review it, since doing so will unintentionally function as an unnecessary control measure for other courts. Therefore now the Constitutional Court refrains from reviewing any court decision on forced discovery in criminal cases. While this can be seen as an example of abstention, actually it overlooked the fact that a court decision on forced discovery in a criminal case would have a massive effect on defendants and even on public interests, and,even if a court erred, there will be no opportunity to correct the error. This problem has been addressed in a supplementary opinion of the Constitutional Court decision. Therefore it becomes necessary to first check the legislative intent and its function of the discovery process described in Criminal Procedure law,and discuss problems in practice and solutions. It may be required to make a legislative approach that enables higher courts to supervise lower courts, or empowers another court to decide on forced discovery, so new standards on discovery process could be set. For now, it is only possible to let the court of first instance decide on forced discovery with enough care and thorough review of the prosecution's records. Therefore it is regrettable that the Constitutional Court made an abstentious approach and refrained itself from giving out case-by-case decisions which could automatically set a practical standard on forced discovery.