공범인 공동피고인의 증인적격 – 증인지위 조항의 연혁과 진술거부권 보장을 중심으로 –

The Korean Criminal Procedure Act follows the continental legal tradition, particularly the German model as adopted through Japan, concerning the “witness status clauses”-a series of provisions defining witness competency, the scope of the privilege against self-incrimination (the right to remain silent), and the obligation to take an oath. However, differences in the structure of these clauses and differing interpretations of the right to remain silent have resulted in divergent regulations across these jurisdictions regarding the witness competency of co-defendants who are accomplices. Regarding the competency of a defendant as a witness, academic theories and precedents in Germany, Japan, and Korea interpret the defendant’s “party status” as incompatible with the “third-party status” of a witness who testifies to observed facts. Consequently, the prevailing view and case law analyze the issue of co-defendants as a conflict and tension between these two statuses. Specifically, it is regarded as a matter of balancing the privilege against self-incrimination(Article 12, Paragraph 2 of the Constitution) of a former co-defendant—who has formally become a “third party” through the severance of proceedings—against the other defendant’s right to cross-examination (Article 161-2 of the Criminal Procedure Act). Even in severed proceedings, priority must be given to the constitutional principle that protects the privilege against self-incrimination, rather than to formalistic distinctions such as “party status” versus “third-party status.” Therefore, legal safeguards must be implemented to ensure that when such co-defendants testify about their own cases, they are not forced into a position where they must choose between incriminating themselves, facing perjury charges, or enduring sanctions for remaining silent.