형법상 사법방해죄 신설에 관한 연구

Due process in criminal procedure became emphasized and protecting human right during investigation process has been improved though, it is getting difficult more and more to find substantial truth by false representation and documents. Therefore the Ministry of Justice promoted to establishing obstruction of justice provision however, Supreme Court of Justice, Bar Association, academy and human rights group opposed. They argue that punishing false representation, etc.becomes forcing duty to make a statement thus it destroys right to defense stems from right against self-incrimination in constitution as a result it violates human rights. By the way, right against self-incrimination of Constitution Article12 (2) is right to deny a statement passively. Active false representation is not accepted. The US Supreme Court also mentioned clearly, the United States constitution Article5 is right to silence not to make a false statement. Thus, Cons are not regarded logically. Actually establishing obstruction of justice provision is not the matter of legal logic. It is matter of policy to meet the changes of the time. It is not yet to establish provision on punishing false statement when considering historical experience of human rights violations in the process of investment. In the case of testifier, now compulsory summons or enforcing statement is illegal. Establishing provision on fraud and false statements may available with adding strict requirement. Furthermore, at the point of making investigation environment for testifier to tell the truth, it is needed to improve the provision on statement interruption.