재판절차의 바람직한 입법방향

Abstract

As most historical research shows, our criminal trial system is a mixture of two different legal traditions: Continental Civil-Law and Common-Law ideas. We have imported the principle, from the experience of continental legal systems, that fact finders in a criminal trial should have a chance of examining the witnesses directly in an open court. Also, the rule against hearsay has been successfully imbedded to our legal system in the course of studying the Japanese criminal procedure law which was mostly influenced by the propositions of American scholars, such as Wigmore and practitioners. Sometimes two different ideas conflict in our everyday criminal trial. The Continental system insists upon us that a trial judge should play his role as a fact-finder and engage actively in finding the truth, while the American idea recommends that he is to be an umpire of a criminal trial, not an playing actor. Since these different attitudes and ideas are reflected in various articles of the Korean Criminal Procedure Law, the Korean legal circle has had a lot of problems in understanding and interpreting them properly. Our trials are full of documentary evidence prepared by the Police and Prosecutors, and, at the same time, the Common-Law tradition requires that the truth should be re-constructed from findings of active witness examination done in an open court as is the case of the English jury trial. The situation being so, we need to carefully read again the meanings of our criminal trial code, and try to reorganize our court system for better reflecting the Common-Law and Civil-Law recommendations.