반대신문권 보장: 전문법칙의 근거

It is necessary to determine what Hearsay Rule is and where it stands. It is generally accepted that Hearsay Rule has its origin in Anglo-American law and it is established on the basis of “right of cross examination”, but some say it originates from “Unmittelbarkeitsgrundsatz” concept of Continental law - the rule’s history needs to be made clear. However, since Hearsay Rule has been put to the Korean Criminal Procedure Code for already half a century and it is considered as one of the most important rules among the basic principles of evidence, it is rather crucial to understand the rule according to our discipline and its circumstances. It is important to analyze and review the attitudes of academics and practitioners toward Hearsay Rule, to locate the rule as one of the major principles of our criminal justice system. As a precondition to do so, this thesis discusses significance of “right of cross examination(Rechte zum Gegenverhor)”. To guarantee defendant’s right to cross examine has its importance in such: more truthful information to be gathered in conversation between parties; not to treat the defendant as a mere subject of investigation, but as an equal participant in the process and a counterpart to the prosecutor accordingly to equality principle; to make the defendant voluntarily accept the outcome of trial through his active participation. Guaranteeing the right to cross-examine, apart from guaranteeing the right to participate and the right to confront one’s accuser, is to actually assure the defendant of the opportunities to question and to acquire answers. When there is any infringement of this right, the admissibility of thus acquired evidence needs to be denied. Even with an ex post facto assent of the defendant, there should be no exception to the principle.