국제형사재판소의 증거개시 제도에 관한 연구- 형사소송법상 ‘서류 등의 열람·등사’ 제도에 대한 시사점을 중심으로

In 2007, the evidence disclosure system was introduced in Korea by establishing the provision related to the “inspection and copying of documents, etc.” under the Criminal Procedure Act (see Article 266-3). However, even after 10 years since the enactment of said provision, it cannot be said that a clear standard is in place with respect to the procedure and scope of evidence disclosure, and there are rather voices increasingly urging a revamp of the provision to eliminate any loopholes. Against this backdrop, the study of the evidence disclosure system of the International Criminal Court (ICC) holds significance. Inasmuch as the procedural framework, including the evidence disclosure system, of the ICC　proceedings was adopted following intense discussions among the legal profession from countries with common and civil law systems, it entails a universal concept of the right to fair trial that is applicable to the criminal procedure of any country regardless of the different legal systems and various legal traditions by country. That said, reviewing the ICC’s evidence disclosure system can shed some light on aspects of the disclosure system of Korean courts that require improvement in light of the universal human rights standards. Additionally, it should be noted that the ICC’s effective operation of the evidence disclosure system is attributed to having adopted the electronic filing system for all cases, a fact that will strengthen the case for introducing said system for criminal cases in Korea. Based on these premises, this paper discusses the ICC’s procedure for disclosure, including subject matter and period, centering on the Rome Statute of the International Criminal Court and other relevant statutes as well as judicial precedents. In particular, the paper emphasizes that: (i) a prosecutor assumes the duty of disclosure of incriminating and exonerating evidence, regardless of whether a defendant requests disclosure, which is closely related to a prosecutor’s objective obligation to establish the truth; (ii) a court has the power to order stay of proceedings in cases where a prosecutor’s non-performance of such duty violated an accused’s right to fair trial; (iii) a court has sole discretion to determine whether there is a justifiable cause for non-disclosure; and (iv) the electronic filing system actuates the evidence disclosure system to run smoothly. These findings can be referenced in future legislative improvements and statutory interpretations regarding the evidence disclosure system under the Criminal Procedure Act of Korea.