일본 형사소송법상 형사면책제도(刑事免責制度)가 적용된 최초의 사례

This article introduces the first case in which criminal immunity system under Japanese Law of Criminal Procedure was applied. Since June 1st, 2018, criminal immunity system has been introduced in Japan pursuant to laws amending the Law of Criminal Procedure and other laws in 2016. Under the criminal immunity system, the courts provide immunity to witness to force testimony after waiving the right to refuse to testify. This system is introduced to deal with cases to which there is no way to obtain testimony to prove organized crime and witness refuses to testify based the privilege against self-incrimination. This article reviews the first case in which such system was applied. In the present case, two people, X and A, were indicted as joint principal offender for violation of the Stimulant Control Law (importation for profit purpose). X and A both denied intent and conspiracy on importation of stimulant. Trial for the defendant X was held first during which prosecutor requested criminal immunity for A and the court approved such request. On the date of trial for X, A who attended trial as a witness for the accused testified to prosecutor’s questions on how this case came to the court. However, his testimony denied intent and conspiracy to import stimulant which was same as the defendant X’s assertion. Especially as to prosecutor’s questions on the memo to support intent and conspiracy of X and A to import stimulant, A repeated answers that he did not recall nor had no memory of it. The first court acknowledged X’s intent to import stimulant and conspiracy with A and sentenced X to 8 years of incarceration and fine of 3 million yen. Of course, the first trial court also acknowledged A’s intent on importing stimulant. X disagreed with the judgment and appealed but the appeal was denied. The issue arose from this case was how to effectively secure testimony from the witness who received criminal immunity. Although A received criminal immunity, he denied intent on criminal conduct and exhibited tendency to avoid testimony as he repeatedly testified that he had no memory on the memo. Accordingly, appropriate measures need to be prepared in order for the criminal immunity system to be properly utilized to secure testimony of the witness who received the criminal immunity. It is meaningful to look into the Japanese case in which criminal immunity system was applied. Because, in the past, South Korea moved to introduce a system called the Immunity of Accomplice to Korean Criminal Law and Korean Criminal Procedure which was similar to Japanese Criminal Immunity System. It does not seem possible to introduce system like Japanese Criminal Immunity System in our criminal procedure right away. However, it is possible to introduce the system like Criminal Immunity System in the future as a mean to respond to crimes as they become organized, intellect or large-scaled. Then, the Japanese case introduced by this article can be a reference.