현행 조서관련 규정에 관한 비판적인 고찰 - 비교법적인 고찰을 통한 현행 규정의 검토와 대안의 모색을 중심으로 -

In principle, a crime should be orally stated in a trial with participation of all parties of a legal procedure. Also, judges are not allowed to substitute direct evidences with indirect evidences when an investigation for direct evidence is possible. Especially in case of personal evidence, prosecutors must impeach statements only by cross-examination. These requirements are reflected as Unmittelbarkeit and Mündlichkeit in the Continental legal systems, and as the hearsay rule in Anglo-American legal systems. However, Articles 312-2 to 316 of the Criminal Procedure Code in Korea are fundamentally different from both the hearsay rule and Unmittelbarkeit. In most legal systems, presentation of protocols of examination in a trial is strictly prohibited except when a defendant confesses one's crime. Even when there is a confession, most of protocols of examination are not allowed as evidence in a trial. However, according to the current Criminal Procedure Code, evidence is admissible as long as it meets certain requirements regardless of whether the defendant made a confession or not. In case of protocols of examination on those who are not a defendant, the statement should be presented in a trial in the form of testimony, not by submitting such protocols of examination itself, in most legal systems. However, current Criminal Procedure Code allows submitting such protocols of examination. The reality of current criminal justice is that the establishment of conviction is made by protocols of examination rather than by live testimony of witnesses because of the unique criminal system in Korea. Trials that are severely dependent on written document may infrings the basic rights in the Constitution, such as the right to be tried by judicial officers, the right to have interview with judge, and Anspruch auf rechtliches Gehör. It also harms Unmittelbarkeit and Mündlichkeit. This study explores the origin of current system of protocols of examination and reviews current regulations related to protocols of examination. The legislation history of current regulations related to protocols of examination and recent discussions in United States and Germany are reviewed in comparative perspective. And comparative analysis on the regulations related to protocols of examination in Korea, the United States and Germany are presented to produce alternative suggestions. Finally, legal issues with question-answer style protocols of examination enforced by investigating agencies are examined and alternative legislative suggestions are presented.