개정 형사소송법 상 검사 작성 피의자신문조서의 탄핵증거로의 사용

Abstract

Article 312 of the criminal procedure Act has been amended. Now the protocol concerning interrogation of a criminal suspect, prepared by a prosecutor is admissible as evidence only when the defendant agrees the contents of his own statement are truthful. However, even if the evidence is not admissible as evidence by the hearsay evidence rule, it can be used for impeachment. In this respect, this study examined whether the suspect-interrogation protocol by prosecutor, which is inadmissible by the hearsay rlue could be used as evidence of impeachment against the defendant's statement. It is stipulated in Article 318-2 of the Criminal Procedure Act that ‘A document or statement otherwise inadmissible as evidence under Articles 312 through 316, shall be admissible, if it is produced to challenge the admissibility of a statement of a criminal defendant or a person other than the criminal defendant at a preparatory hearing or a trial’. According to this, protocol concerning interrogation of a criminal suspect, prepared by prosecutor which is inadmissible by the article 312(1), can be used for impeachment. Also as stipulated in Article 318-2 of the Criminal Procedure Act, not only the witness’s but also the defendant’s statement can be impeached. It may cause some issues about the defendant’s right to remain silent, but the debate over whether the defendant's statement can be impeached or not takes place from a completely different perspective. The defendant has a constitutional right to refuse to state. So, he can be silent. But also he can and should be asked about the statement he did in the courtroom. Impeaching the defedant's statement is helpful for fact-finders to find fact, and it is the way to go the principle of court-oriented procedure.