형사소송법상 「성립의 진정」에 관한 연혁적 고찰과 그 함의

This study seeks to determine the origin of the concept of “authenticity of formation” as used in the Criminal Procedure Act. According to provisions on the authenticity of formation, which originates from the Civil Procedure Act, a document shall be admissible as evidence if it has been prepared as intended by the person making the original statement. In the past, Japanese authorities reviewed the authenticity of formation based on defects in protocol preparation, and problems related to documentary evidence and admissible evidence. Taking this into account, our lawmakers have prescribed the authenticity of formation as a condition for evidence to be admissible. Following the abolition of preliminary hearings in the Criminal Procedure Act, it has become necessary for investigation authorities to prove the authenticity of protocols. While the use of protocols as evidence is an exception to the principle of immediacy, the requirement of statements to be provided by the person making the original statement for the authenticity of formation serves as a supplementary measure. The simplified examination of evidence, involving the announcement of the gist of the statement, speeds up the litigation process. Since the reading of a protocol is replaced by a statement made by the person making the original statement, the means of determining protocol admissibility must not be expanded to include areas irrelevant to the statement if the authenticity of formation is maintained as a condition of admissibility. From this perspective, it is necessary to utilize written statements rather than Q&A-type protocols. A more fundamental approach is to establish new conditions of admissibility to reflect the reading of documents admitted as evidence.