사법경찰관 작성 피의자신문조서의 증거능력 제한에 대한 재검토

Article 312 subsection 3 of the Korean Criminal Procedure Law(hereinafter “Article 312.3”) is unique korean regulation which cannot be found in other foreign legislative systems. However, although Amended Criminal Procedure Law(2007) claims to advocate principle of court-oriented public trial and overcome the trial practices prevailing of Protocols produced by law enforcement agencies, it still puts evidentiary admissibility of the Protocol prepared by senior judicial police officer under the admission of the defendant or his/her defense counsel and seems to overshadow original intent and purposes of the Amendment in 2007. Revising the Article 312.3 has become unavoidable in terms that the Article 312.3 has accomplished its historical mission but also discloses contradictions and incongruities in current criminal procedure law system. Therefore, this study tries to review legislative intent and legal basis of the Article 312.3 and indicate drawbacks therefrom. First, although making allowances for investigating authorities(such as judicial police officer) tend to force confession of the criminal suspect in investigation practices, it should be noted that limiting the evidentiary admissibility of the Protocol prepared by senior judicial police officer only by the objection of the defendant or his/her defense counsel is too excessive. Second, the purposes and measures of Article 312.3 are not only incoherent but also heavily unbalanced by putting the admissibility of the evidence under the arbitrary will of defendant. Third, Article 312.3 and article 316.1(which stipulates admissibility of investigator’s testimony in open court) of the Amended Criminal Procedure Law(2007) are hardly consonant with each other. Fourth, Article 312.3 impedes the efforts to bring improvements on illegal practices such as incomplete and false investigation. And finally, considering that the direction for the revision of the article 312.3 should be under in-depth discussion with the holistic view of the criminal procedures, this article tries to suggest some possible directions of Article 312.3 instead of asserting certain types of amendment.