형사소송법 제312조 제3항의 확대 적용 - 대법원 2020. 6. 11. 선고 2016도9367 판결 -

This study focuses on the decisions of The Supreme Court of Korea on the extended application of the Criminal Procedure Act of Korea Article 312(3). It provides that “A protocol concerning interrogation of a criminal suspect, prepared by any investigative institution other than a prosecutor, shall be admissible as evidence, only if it was prepared in compliance with the due process and proper method and the criminal defendant, who was the suspect at the time, or his/her defense counsel admits its contents at a preparatory hearing or a trial.” Until now, the Supreme Court has extended the application only to the protocol of an accomplice. The Supreme Court proposes a new framework for the extended application in the above decision. It holds the opinion that the above article shall be applied to ensure the human rights of the criminal defendant if there is an inseparable nature between the facts of the offenses and sharing important parts between the facts recognizes the inseparability. According to the new framework, even the relations of joint penal provisions which are beyond the category of accomplice relations can be subject to the expanded application. As a result if the accused employer or his/her defense counsel denies the contents of the protocol of the employee who violated then it shall not be admissible as evidence. This decision is meaningful in that it is the first Supreme Court ruling to recognize the extended application despite the absence of accomplice relations.