선거관리위원회 작성 증거의 증거능력 -전문법칙 적용요건을 중심으로-

Documents such as questions and answers prepared by the Election Commission investigator are used as solid evidence in the election crime trial, in accordance with the Election Commission’s authority to investigate election crimes. The Supreme Court determines the admissibility of a document prepared by an Election Commission investigator under Article 313 of the Criminal Procedure Law. In the election crime investigation process of the Election Commission, the possibility of human rights violations is equivalent to or greater than the intensity of the investigation. Accordingly, new obligatory clauses have been added in the Public Official Election Act that investigator must notify any suspects of the right to refuse to make statements and even the right to counsel. Considering the constitutional interpretation of these procedural rights and the purpose of the Supreme Court's ruling, the nature of an election crime investigation should be regarded as a practical investigation, not just an administrative investigation. As a result, the Supreme Court's attitude toward the Election Commission investigator as a mere private person should be reconsidered when judging the admissibility of evidence under the hearsay rule. Election Commission investigators should be treated as investigative agencies other than prosecutors, and Article 312 of the Criminal Procedure Law should be applied the admissibility of evidence.