검사 작성 피의자신문조서의 증거능력 개정안 검토

The principle of direct examination employed by the Continental criminal system requires that the suspects and witnesses should be interrogated by the trial judge himself in an open court. Exceptions to this principle only extend to the trial transcripts prepared by the court. However, for historical reasons, some transcripts or protocols largely produced by the law enforcement personnel, such as police officers and prosecutors, came to be qualified as a couple of exceptions in Korea. * This work was supported by the 2020 Research Fund of the University of Seoul ** Professor of Law, University of Seoul Law School. If a prosecutor or his deputy writes down the statements of the suspect in the course of investigation and submits the overall document recording the admissions to the trial court, the court legally accepts it as substantive evidence against the defendant, which is the law in Korea. Unless the defendant denies in court the fact that the document exactly copied his statements as they were, he may not later raise an issue of truthfulness of the statements that he provided in front of prosecutor. That is the reason why the recent revision of criminal procedure law seems, to practitioners as well as academics, too bizarre. From now on, the defendant may deny the truthfulness of his admissions at any time and, by simply doing that, he can evict them from the exhibit list. There is no need to explain why he opposes such and such admission to be admitted against him in trial. He is not obliged to give any reasons to attack the competence of that kind of evidence. It is all up to him to cancel his prior statements or let them survive and play a role as evidence. And now, are there any feasible scenarios under which the prosecutor nonetheless provide the court with the statements of the defendant that he has obtained? That is the main topic of this article.