형사 소송구조와 증거법칙 : 적정절차화를 위한 제안

Under section 307 (1) fact should be proved by evidence in criminal procedure. Nonetheless no one could insist what the admissibility of evidence be. A myth comes up in several cases. Sometimes a judge determines without reasonableness. Big law firm lawyers dominate the court. Citizens begin casting doubt on the criminal law and its system in reading the verdict of several case. In this situation, a need is to shed a light on the structural design of Korean criminal procedure. The Korean procedure does not contain rules on admissibility in the meaning of the evidence law, working in the traditional Common law. Our criminal procedure however, dwells in modern inquisition rather than pure adversarial system. Modern inquisition is far different from the ancient one since the French Revolution. The structure and procedural scheme have been developed on the reason of territorial and cultural background. Adversarial system is supported by a concrete and specific evidence rule. In the inquisition, evidence rule is limited, even though the evidence plays on a key role. To enhance the due process principle, we may as well look more precisely at the structural design of the present criminal procedure. Investigation and collecting evidence without supervising by judge, discovery without having specific evidence rule, verdict without knowing criminal truth will bring the process into a chaos. This is the point of no return.