형사소송법 제316조 제1항의 해석론상 문제점 검토

Under the Korean Law and its rule against hearsay, which was imported from the States through Japan, a criminal defendant’s extra-judicial statements are admissible only if they were made in a specifically reliable circumstance. The Japanese criminal procedure law has exactly defined this type of hearsay statement as ‘party admission’and does not require any circumstantial guaranties of trustworthiness in admitting it as substantive evidence. However, the Korean legislators in 1961 has made a mistake by stating that even party admission needs to be trustworthy for overcoming the hearsay huddle in a criminal trial. The legislative defect has not resulted in a bad effect on the defendant’s defensive rights because the Supreme Court has come to examine as rigidly as possible the truthfulness of confession or admission before accepting it as evidence. Accordingly the lower courts have been always vigilant in hearing and reading the adverse statements pronounced by the suspect before or after consulting his lawyer. As is stated in the Article 316① of the KCPL, a third party’s testimony is not admissible as evidence if it contains the defendant’s admission unless the admission was made in specifically reliable circumstances. This is one of the sharp differences in regulating party’s admission in Korea on the one hand, and the States and Japan on the other. The Korean courts are not ready to accept it as smoking gun for the prosecution even though they formally categorize it as one of the hearsay exceptions. This local trend has ironically helped the defendants for more than sixty years in Korea.