당사자주의하에서의 대면권과 전문법칙 - 미국의 크로포드(Crawford) 원칙과 유럽인권 협약상 대면권의 비교를 중심으로 -

This study aims to contour the confrontation right of Korea by comparing it to the Crawford principle of the United States and the confrontation right of the European Convention on Human Rights which has been set forth by the European Court of Human Rights(hereinafter ECHR) in Strasbourg. Undoubtedly, the accused's right to confront declarants who testify against him/her in criminal trials, has been considered a fundamental right for effective defense, regardless of the types of criminal systems, philosophies, and social cultures. Therefore, confrontation right of the accused has been a universal norm and a fundamental procedural right in criminal procedures all around the world. The confrontation right under the adversary system, however, is considerably different, in that the adversary system clearly differentiates testimonial statements and non-testimonial statements; the confrontation right under the adversary system strictly scrutinizes the admissibility of untested testimonial hearsay and it allows untested non-testimonial statements subject to the rule against hearsay. Therefore, the Crawford principle deems all untested testimonial statements inadmissible. Unlike Crawford, however, ECHR does not recognize the difference. Rather, it only requires that hearsay not be the sole or decisive evidence of a criminal conviction. This paper analyzes hearsay rules of Korea and finds some similarities with Crawford. Based on this analysis, it concludes the confrontation rights reflected in Korea evidentiary rules are mostly based on the adversary system. This article goes on to suggest some reformative measures for the Korean evidentiary rules to be consistent with the confrontation right of Korea.