증거개시제도 : 과거, 현재, 미래

South Korea’s criminal justice system was said to belong to traditional continental law system until it has recently introduced many features of adversarial system into the criminal procedure. Before the revision of criminal procedure in 2007, the Korean Criminal Procedure Act(hereinafter the “ACT”) did not obligate the prosecution to provide defense with evidence which it held after indictment of crimes. Nonetheless, the defense could access to evidence via the court because the prosecution submitted to the court all relevant material which they had in its hands along its indictment of the crime. Since the court made a decision that it would not take any evidence from the prosecution except for the indictment paper at the outset of trial, in 2007, the ACT was revised to provide defense with the way the defense has access to the materials which the prosecution holds before the prosecution submits them into evidence. The ACT Article 266-3 (Inspection and Copying of Documents and Articles in Custody of Public Prosecutor Subsequent to Indictment) provides that a defendant or his defense counsel may file an application with the prosecutor to ask the prosecutor to allow him to inspect or copy, or deliver in writing, a list of the documents or articles relating to the case indicted (hereinafter “documents”) and the certain documents that are likely to have influence over admission of indicted facts or sentencing. The documents includes the following: 1. Documents that the public prosecutor would produce as admissible evidence; 2. A paper that describes the names of persons whom the public prosecutor plans to produce as witnesses and their involvement in the case or documents that contain statements made prior to trial; 3. Documents relating to the weight of evidence of the paper or documents under subparagraph 1 or 2; and 4. Documents relating to arguments made by the defendant or his defense counsel on matters of law and fact (including the records of related criminal trial for which adjudication is finally closed and the records of cases for which non-prosecution has been disposed of). Critics point out that this newly adopted discovery system does not fully ensure fair, full and timely disclosure of information favorable to an accused so that it fails to achieve the goal of fair trial and due process of law in a criminal action. Many scholars agreed that the scope of disclosure is too narrow and the stipulations of exception for disclosure is too vague and abstract resulting in the prosecution’s possible abuse. It is desirable to eventually revise the Korean Criminal Procedure Act into such a form more favorable to defense just as ABA Model Rules of Professional Conduct Rule 3.8(Special Responsibilities of a Prosecutor) which provides that “The prosecutor in a criminal case shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.” While I agree with the majority of scholars, I also suggest that we should emphasize prosecutors’ ethical aspect such as obligation of objectiveness in applying the evidence disclosure for the purpose of actual benefit of defense. Last but not least, there should be various incentives for prosecutors to perform faithfully their duties of evidence disclosure as prescribed in the Act.