한국 형사재판절차상 증언거부권 제도의 쟁점과 개선방안

This study aims to analyze the main issues surrounding the system of the right to refuse testimony, namely the testimonial privilege, in South Korean criminal procedure and explore measures for improvement. While the right to refuse testimony is essential for protecting witnesses' human rights and maintaining specific social relationships, it must harmonize with the objective of discovering substantial truth in criminal proceedings. Current Korean law presents several challenges: the scope of relatives entitled to refuse testimony is overly broad, protection for attorney-client confidentiality and journalistic sources is insufficient, and regulations concerning the effectiveness of notifying witnesses of their right to refuse and the consequences of failing to notify are unclear. This paper significantly expands the comparative analysis with the privilege system under U.S. evidence law (specifically focusing on Spousal Privileges, Attorney-Client Privilege, and the Special Master system) and the German Code of Criminal Procedure. Based on this approach, it proposes specific improvement measures from both interpretive (e.g., reinterpreting ‘criminally disadvantageous circumstances', establishing criteria for ‘significant public interest’) and legislative perspectives (e.g., narrowing the scope of relatives in Article 148 based on economic community standards, newly legislating journalists' right to refuse testimony in Article 149, adding Article 160-2 to exclude evidence obtained without proper notification). These proposals aim to ensure the legitimate exercise of witnesses' rights while preventing abuse of the right to refuse testimony, thereby promoting a balance between the principles of due process and the discovery of substantial truth.