반대신문권 보장의 헌법 및 인권법적 의의와 비교법적 검토

Abstract

The Constitutional Court decided the targeted clause unconstitutional, which had allowed the admissibility of the video recording containing pretrial statement of the minor victims of sexual violence crimes without their direct testimony in the trial court. According to the Court, this is mainly because there is a risk of hindering the discovery of the truth, if the defendant's right to cross-examination is not guaranteed and even though harmonious methods that can prevent secondary damages of the victims already exist, depriving the defendant's opportunity to cross-examine not utilizing those methods violate the constitutional principle of prohibition of excessive restriction and violate the right to a fair trial guaranteed by Article 27 of the Act. However, the decision contradicts the Constitution and the criminal procedure law system, and the right to cross-examination itself cannot be regarded as an independent fundamental right of the Constitution. Guaranteeing the defendant's right to cross-examination of minor victims of sexual violence crimes without considering the fairness of the specific trial can not be justified in terms of human rights, as it can impair the truth of case and impose secondary harms on minor victims. These problems cannot be solved with the so-called harmonious methods, and the decision cannot be justified in terms of the point of view of comparative law. The admissibility of the video recording where the right to cross-examination is not guaranteed should be allowed to be ultimately decided by the court according to the judgment on whether or not the fairness of a specific trial has been violated, and that is a more appropriate and systematic way.