법원에 출석하여 불일치진술한 피고인 아닌 자의 검찰진술조서의 증거능력

• 영문명: Admissibility of Prosecutor’s Record Containing the Statement of Witness Who Makes Inconsistent Statement in Court
• 발행기관: 한국형사판례연구회
• 저자명: 강우예(Kang, Wu-Ye)
• 간행물 정보: 『형사판례연구』형사판례연구 제26권, 439~488쪽, 전체 50쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2018.06.30

영문 초록

In the korean supreme court case in question, the fact needs to be reconsidered, that the prosecutor’s record containing the statement of witness that becomes the decisive evidence to prove the guilt was left out. Especially, even though the court judged that the chance of cross-examination was provided to the declarant of the record and there was no substantial violation of procedural rules, it could have assess the circumstantial guarantees of truthworthiness. Every issue will be absorbed into the principle of free evaluation of evidence, if the admissibility of the prosecutor’s record is not considered. It is so hard to completely agree with the argument of the dissenting opinion in which in case of inconsistent statements more weight of reliability must be placed on a court testimony. It is because it is clearly in violation of the principle of free evaluation of evidence to simply more rely on a court testimony in case of inconsistent statement. In light of the facts appearing in the case in question, it was possible to assess reliability of circumstances of statement separately from total consideration of reliability of evidences. Most of all, the witness’ statement before prosecutor should not have easily admitted when considering its’doubtful circumstances. Therefore, the courts, expecially the appellate court, should have closely examined the circumstances by having the persons related to the prosecutor’s interrogation take the stance. Because this process was left out, the requirement of the circumstantial guarantees of truthworthiness was not satisfied.

목차

[대상판결] 대법원 2015. 8. 20. 선고 2013도11650 전원합의체 판결

[공소외1 진술의 증거능력] 제1심인 서울중앙지방법원 2011. 10. 31. 선고 2010고합1046 판결에서 발췌

Ⅰ. 문제의 제기

Ⅱ. 형사소송법 제312조 제4항 참고인 진술조서의 특신상태의 의미

Ⅲ. 대상판결의 분석 - 공소외1 검찰 진술조서의 증거능력 판단

Ⅳ. 결론

키워드

불일치진술 전문증거 증거능력 특신상태 진술조서 Inconsistent Statement Hearsay Admissibility Circumstantial Guarantees of Truthworthiness Statement Deposition