헌법상 반대신문권과 미성년 성폭력 피해자영상진술의 증거능력

Abstract

The Constitutional Court of Korea decided that the provision of the Sexual Violence Punishment Act that allows the use of video statements of victims of child sexual violence as evidence without cross-examination is unconstitutional in the 2021 decision. The Constitutional Court held that the right to cross-examination was the core of the right to a fair trial. According to the judgment of the Constitutional Court, it was determined that the provisions the Sexual Violence Punishment Act did not guarantee the defendant's right to cross-examination, and consequently violated the defendant's right to a fair trial. The provision stipulated an exception to the hearsay rule to prevent secondary harm to victims of child sexual violence, and the Constitutional Court judged that the provision that recognized this exception was unconstitutional.
 Unlike the US Constitution, there is no right to confrontation clause in the Korean Constitution. It has not been empirically confirmed whether the right to cross-examination against child victims of sexual violence contributes to the discovery of the substantive truth. Therefore, although the Constitutional Court regards the right to cross-examination as equivalent to the fundamental right under the Constitution, it is questionable whether this judgment is correct. Rather, the decision of the Constitutional Court seems to be more in line with the American legal system, which has the right to confrontation clause in the Constitution, regarding the right to cross-examination as the most effective device for finding the truth.
 On the other hand, the hearsay rule and the right to cross-examination are clearly stipulated in the Criminal Procedure Act of Korea. The Criminal Procedure Act of Korea is oriented toward trial-centered system and adversarial trial system. Therefore, the right to cross-examination is an important device for correcting errors and discovering the substantive truth in the Korean legal system. Therefore, it is meaningful that the Constitutional Court recognized the right to cross-examination as a constitutional right and strictly interpreted the exception to the hearsay rule in the Sexual Violence Punishment Act. In the future, it will be urgent to come up with a plan to ensure the right of cross-examination of the accused without causing secondary harm to the victim by reconciling the two interests of guaranteeing the defendant's right to cross-examination and the protection of child victims of sexual violence.