형사소송법 제313조 제1항 단서의 해석상 문제점-대법원 2012. 9. 13. 선고 2012도7461 판결-

Let’s imagine that someone captures the defendant’s voice in a voice-pen recorder for presenting it to the trial court as evidence. The Korean Criminal Procedure Law states that it may be presented to the trial as evidence by means of playing it in the court. However, if the recording contains the defendant’s out-of-court statements in it, a problem of hearsay should be raised from the defendant and his lawyer, and the prosecution must explain why playing the file does not go against the hearsay rule. In Korea, defendant’s out-of-court statements are widely accepted as evidence because there are some exceptions to the rule against hearsay from the Article 311 to 315 of the KCPL, and the Article 313 regulates the situation where any person, not working as a police officer or prosecutor, records what the defendant says in a daily life. For example, if the defendant confesses to his friend the fact that he has committed a murder in a certain day, it could be possible that his voice be recorded by his friend and the recorded file be submitted to the trial court dealing with the defendant’s murder case. The Article 313 states that, if the recorder, not the defendant himself, acknowledges that the defendant has said something to him, and he has properly recorded it, the defendant’s saying in the recorder may be used as evidence in the murder trial. In interpreting this provision there are some disputes among practitioners and academics regarding the Article’s meaning and this paper tries to clarify it by tracing the legislative data of the KCPL.