2020년 신형사소송법상의 조사자증언제도에 대한 소고

The denial by the defendant in his or her written statement invalidates the written statement submitted by investigation authorities under the Criminal Procedure Amendment Act in 2020 where the Article 312 (1) regarding prosecutor’s interrogation dossiers has been amended in the same way as the conditions for the admissibility of evidence of police officer’s interrogation dossiers is provided, and the Article 312 (2), which was the way to prove the substantial authenticity of the interrogation statement via the objective way such as the video recording of interrogation when the defendant denies the authenticity of the written statement, is deleted. However, lawmakers who were concerned about the curtailment of the right of a criminal prosecution of public prosecutors did decide to maintain the Investigator Testimony System introduced in 2007 and the written statement under the Criminal Procedure Amendment Act in 2020 still has an opportunity to survive indirectly in the world of evidence. The argument coming from academia is still persuasive that the admissibility of evidence should be invalidated, because the Article 316 (1) of the Act in 2020, granting the independent admissibility of evidence to the written statement by investigation authorities with no defensive measures to fully guarantee the transparency at the investigation stage, has been in contradiction with the Article 312. However, the above argument adheres to the purpose based on past realities about investigation at the time when the Criminal Procedure Act was enacted in 1954, but ignores current realities about investigations, including evolving crimes, victims’ human rights, all preventive measures against illegal investigations, and, as a result, logical consequence of theory is going back to pedagogical interpretations before the Criminal Procedure Amendment Act in 2007. The Investigator Testimony System has been implemented in order to emphasize the Court-oriented Trial System, exclude the admissibility of evidence of the prosecutor’s interrogation dossiers, with the intention of using criticisms against the reality of Statement Trial System standing on its own and seeking for solution in a systematic way to overcome the negative effects of the Statement Trial System, compensate for the curtailment, after being concerned about the curtailment of the right of a criminal prosecution of public prosecutors on the condition that the admissibility of evidence is totally ignored in a criminal court, and realize principle of oral proceedings. In light of the purpose and legislative process of the Criminal Procedure Act, the Article 316 (1) is clearly seen as a legislative volition where investigator testimony is admissible in criminal court, notwithstanding the Article 312 (3). Coming to thinking of the purpose of the Criminal Procedure Amendment Act in 2007, there is no question that the Article 316 of the Act admits the admissibility of testimony by investigator as evidence as an exception to the hearsay rule. It is inappropriate to be ignorant of the purpose of the Act and hold the view that negates the admissibility of the investigator’s testimony as evidence, simply based on pedagogical interpretation or diagnosis and prospect of the phenomenon, although the system admitting the admissibility of evidence has come into existence.