공소사실을 자백하는 피고인의 증거인부 의견에 관한 검토 - 공소사실을 부인하는 공동피고인인 공범자의 피의자신문조서에 대하여 -

The Criminal Procedure Code Article 318 allows admissibility of evidence according to the consent of the party. Regarding the nature of this consent of evidence, the majority of scholars and the Supreme Court define it as the 'waiver of the right to cross-examination.' Most of the court precedents applying this article are related to the accused's consent of evidence which can act as a disadvantage by proving the facts charged to be guilty. The reason is that the defendant denying the charges will not consent to any evidence that acts as a disadvantage against him, and the prosecutor will not present any evidence that is not related to the defendant's guilt or innocence, and the evidence proving the defendant guilty is not in need of strict admissibility of evidence. Therefore, the defendant confessing to the facts charged against him is in no need to wield his right to cross-examination' to impeach the reliability of the evidence that he has consented to, since there is enough evidence to prove him guilty. Applying this theory of the 'waiver of the right to cross-examination' will not bring about any unfair outcome. However, when the defendant and the accomplice are in court as co-defendants, the former confessing to and the latter denying the facts charged, where there is no other evidence besides the co-defendant's confession, the situation dramatically changes. In particular, when the protocol of examination by the judicial police about the statements of the co-defendant denying the charges in court only partly corresponds to the other co-defendant's confession and mostly counters it, the confessing co-defendant needs supporting evidence. Thus the confessing co-defendant will need to consent to the evidence and acquire admissibility in the minimum range of the evidence being supporting evidence, instead of not consenting to it because it counters his statements. In this case, since it only partly corresponds to the statements of the co-defendant, the rest of the evidence having acquired admissibility must be thoroughly impeached during the interrogation of the suspect. Although allowing admissibility on parts of the evidence in question can solve this problem, partly allowing admissibility on a whole statement of one person regarding one crime must be denied. Considering this point, the Criminal Procedure Code Article 318 must be interpreted as a rule purely providing admissibility of evidence, not relating to the waiver of the right to cross-examination regarding reliability. Even if it means waivering the right to cross-examination, one must reach the conclusion that it is only limited to the provision of admissibility of evidence.