원진술자의 증언거부와 형사소송법 제314조의 전문법칙의 예외 - 대법원 2019. 11. 21. 선고 2018도13945 전원합의체 판결 -

Article 314 of the Criminal Procedure Act establishes an exception to the hearsay rule for written out-of-court statements. Two requirements must be met to qualify for the exception: the declarant must be unavailable to testify (necessity), and the statement must have been made under circumstances that guarantee its trustworthiness (reliability). Regarding the unavailability requirement, the Article expressly provides that the declarant is considered to be unavailable when the declarant is deceased, ill, outside the country, or missing, but what other circumstances also qualify as unavailability is left open for interpretation. In a recent en banc decision (2018Do13945) the Supreme Court of Korea ruled by a 12:1 majority that a witness’s refusal to testify does not render the witness unavailable for the purposes of Article 314’s hearsay exception. As a result, the witness’s out-of-court statements made to law enforcement officers were deemed inadmissible. The majority based its reasoning on the legislative intent inferred from the legislative history of Article 314, the need to secure the defendant’s right to cross-examination, and the risk of the hearsay statements being untrue. The majority’s reasoning, however, is unpersuasive. First, there is sparse evidence in the legislative history of Article 314 that indicates a legislative intent to restrict the scope of the unavailability requirement. Second, emphasizing the defendant’s inability to exercise his or her right to cross-examination in the context of Article 314 is misplaced, because the very purpose of the Article is to provide an exception in situations where the defendant is unable to cross-examine the declarant. Lack of cross-examination is a common feature that all situations intended to be regulated by Article 314 share: the question at issue is whether some situations among those warrant differential treatment in terms of unavailability, not whether the defendant can cross-examine the declarant or not. Third, the risk of the hearsay statements being untrue is not a matter of necessity of evidence, but a matter of reliability. Article 314 incorporates a two-prong test: whether an out-of-court statement is sufficiently reliable should be factored in when considering the prong of circumstantial guarantees of trustworthiness, not unavailability. When a witness refuses to testify even under all reasonable measures taken by the court to pressure her to do so, it is evidently clear that obtaining live testimony of that witness is impossible. Thus, the necessity to use second-hand evidence is equal to situations where it is impossible to procure the declarant’s presence in court due to death, illness, etc. When the refusal is grounded on a legal right, an argument could be made that the witness’s hearsay statement should be kept out in order not to render the right of refusal meaningless; but such argument is not possible in the case of groundless refusals. The upshot of the Court’s decision is heightened risk of excluding sufficiently reliable evidence, which in turn could lead to courts reaching unjust decisions. To minimize this undesirable result, the ambit of the Court’s holding in this case should be narrowly construed to apply only to hearsay statements made to law enforcement officers.