Criminal Procedure Research Articles

Ensuring the reasonableness of criminal proceedings’ terms

It is indicated that the current Criminal Procedure Code of Ukraine dated April 13, 2012 for the first time at the legislative level established such a principle of criminal proceedings as the reasonableness of terms. Yes, in accordance with Article 28 of the Criminal Code of Ukraine during criminal proceedings, each procedural action or procedural decision must be performed or made within a reasonable time. The article is devoted to the analysis of criminal proceedings’ principle “reasonable terms”. During criminal proceedings, each procedural action or procedural decision must be performed or adopted within a reasonable terms. Terms that are objectively necessary for the execution of procedural actions and the adoption of procedural decisions are considered reasonable. Reasonable terms cannot exceed the terms of execution of individual procedural actions or adoption of individual procedural decisions provided for by the CPC of Ukraine. The pre-trial investigation is carried out within a reasonable terms by the prosecutor, the investigating judge (with regard to the time frame for consideration of issues falling within his competence), and the court conducts the court proceedings. The criteria for determining the reasonableness of criminal proceedings terms are: 1) the complexity of criminal proceedings, which is determined taking into account the number of suspects, accused persons and criminal offenses in respect of which the proceedings are being carried out, the volume and specifics of procedural actions necessary for conducting a pre-trial investigation, etc.; 2) behavior of participants in criminal proceedings; 3) the manner in which investigators, prosecutors, and courts exercise their powers. Criminal proceedings against a person in custody, a minor or a criminal offense committed against a minor must be carried out immediately and considered in court as a matter of priority. It is important to ensure the reasonableness of criminal proceedings terms to study this principle not only in science, but also in judicial practice, in particular, the practice of the European Court of Human Rights. Adhering to the reasonableness of the terms of criminal proceedings will contribute to the exercise of a person’s right to judicial protection, will ensure an effective and prompt investigation and trial, and thus will ensure the fulfillment of criminal proceedings’ tasks.

The relationship of advocate investigation and evidence in criminal proceedings

The article examines the institution of a lawyer’s investigation in criminal proceedings, as well as the activity of a defense attorney in collecting evidence within the framework of criminal proceedings, which should be regulated as fully and qualitatively as possible (as far as possible) in order to implement such principles of criminal proceedings as the presumption of innocence, ensuring the suspect’s right for the defense, competition of the parties, and these principles should apply not only at the stage of the trial, but also at the stage of the pre-trial investigation. Attention is drawn to the fact that currently, in practice, in the absence of legislative regulation of the procedure for the inclusion of information collected by the defense counsel in the materials of criminal proceedings, the defense counsel has to make a reasoned request to officials who are conducting criminal proceedings. It is noted that evidentiary information collected by the defense attorney on his own without involving the materials of the criminal proceedings cannot be used in the process of proving and substantiating the position of the defense in the criminal proceedings, i.e. become evidence in the full sense of the word. In this regard, it is proposed to make changes to the Criminal Procedure Code of Ukraine regarding the procedure for the inclusion of information collected by the defense attorney in the materials of criminal proceedings, including the procedure for providing it by the defense attorney and the procedure for receiving it from the defense attorney by the inquirer, investigator, prosecutor, and court, specifying that no the right, and the duty of persons conducting pre-trial investigation in criminal proceedings to attach evidentiary information to the materials of criminal proceedings. It is pointed out the need for regulatory regulation of the specified legal relations in view of the importance of the development of the institution of evidence collection by the subjects of criminal proceedings, including the defense attorney; since his activity in this field is necessary for the practical implementation of the principle of adversarial criminal proceedings, equality of the parties, as well as for objective pre-trial investigation and trial of each specific criminal proceeding.

Problematic aspects of attorney’s participation in pre-trial investigation under martial law

According to Article 59 of the Constitution of Ukraine, everyone has the right to legal aid. In cases provided for by law, this assistance is provided free of charge. Everyone is free to choose a defender of their rights. The Bar operates in Ukraine to ensure the right to defense against accusations and to provide legal assistance in resolving cases in courts and other state bodies. These provisions of the Constitution of Ukraine are duplicated in Article 20 of the Criminal Procedure Code of Ukraine. According to this provision, a suspect, accused, acquitted, or convicted person has the right to defense, which consists in providing him or her with the opportunity to provide oral or written explanations regarding the suspicion or accusation, the right to collect and submit evidence, to participate personally in criminal proceedings, to use legal assistance of a defense counsel, and to exercise other procedural rights provided for by the CPC of Ukraine. Thus, the direct duty of law enforcement agencies is to protect the legitimate rights and freedoms of a person regardless of his or her gender, nationality, language, citizenship, age, social origin, political beliefs, etc. At the same time, the protection of the rights, freedoms and legitimate interests of a suspect, accused, defendant, acquitted person, a person in respect of whom compulsory medical or educational measures are to be applied or the issue of their application in criminal proceedings is being decided, a person in respect of whom extradition to a foreign state is being considered, as well as a person being brought to administrative responsibility during the consideration of an administrative offense case is carried out by an advocate. This is, in particular, stated in the Law of Ukraine «On the Bar and Practice of Law» № 5076-VI of July 05, 2012. Taking into account the above provisions, it is important to identify and analyze the problematic aspects of the participation of an attorney-at-law in pre-trial investigation in accordance with the current legislation of Ukraine in the context of the introduction of martial law in Ukraine (Decree of the President of Ukraine «On the Introduction of Martial Law in Ukraine» approved by the Law of Ukraine of February 24, 2022 № 2102-IX).

Investigating crimes against the foundations of national security: analysis of the content of new articles of the Criminal Code

It is indicated that in the context of the russian invasion of Ukraine, there is an urgent need to modernize the forensic methodology of investigating crimes against the foundations of national security. Full-scale aggression has led to the emergence of new forms of such crimes, including treason, sabotage and collaborationism, which pose a serious threat to the sovereignty and territorial integrity of the state. The updated methodology should take into account the peculiarities of the state of war, the difficulty of gathering evidence in the occupied territories, and the need to counter cybercrimes and information sabotage. It should ensure effective detection, documentation and investigation of crimes in conditions of limited access to the places of their commission, taking into account the risk of loss of evidence due to hostilities. In addition, the methodology should facilitate rapid response to new threats to national security, including hybrid forms of aggression, and improve coordination between various law enforcement agencies and special services. An important aspect is also the consideration of international cooperation in the investigation of war crimes. The author notes that the analysis of the draft Law «On Amendments to the Criminal and Criminal Procedure Codes of Ukraine on Improving Liability for Collaborative Activities and Related Criminal Offenses gives reason to say that it offers an innovative approach to the wording of Article 111-1 of the Criminal Code of Ukraine, clearly defining the types activities that qualify as criminal offenses. However, some aspects of the new edition need clarification and refinement. The main problem lies in the insufficient specificity of individual wording of actions classified as collaborative activities. This creates the risk of an overly broad interpretation, which can lead to difficulties in the practical application of the law during the investigation of this type of crime, ambiguity in law enforcement, the risk of unjustified prosecution, and difficulties in distinguishing between legal and illegal activities under the occupation.

Judicial control over the observance of human rights and freedoms during the consideration of the prosecution’s motions for permission to conduct covert investigative (search) actions in terms of observance of the principles of the right to a fair trial

The article is devoted to the problematic issues of regulation of judicial control during consideration of applications for permission to conduct covert investigative (detective) actions and use their results for other purposes, in terms of ensuring the right to a fair trial guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The principle of fairness of a trial is interpreted in certain judgments of the European Court of Human Rights as the proper administration of justice, the right of access to justice, equality of parties, adversarial nature of the trial, reasonableness of the trial, etc. The construction of Article 6 of the Convention indicates the existence of the following key elements of the right to judicial protection: 1) the right to a hearing; 2) fairness of the hearing; 3) publicity; 4) reasonable time; 5) hearing by a court established by law; 6) independence and impartiality of the court. The author examines the key issues affecting the objectivity of court decisions in this area, imperfections of the procedures provided for in the criminal procedure legislation in terms of ensuring the fairness of the trial, reasonableness and motivation of the court decision. Special attention is paid to the problems of ensuring the independence and impartiality of the court as a factor that significantly affects the legality of such decisions, and the author suggests ways to improve the effectiveness of judicial control in this area. According to the author the legal regulation provided for by criminal procedure legislation in the area of judicial control over covert investigative (detective) actions, both in terms of consideration of applications for permission to conduct activities related to interference with private life and the use of the information obtained in another criminal proceeding or for another purpose, does not ensure compliance with the guarantees of the right to a fair trial provided for in Article 6 of the European Convention. Along with the need to take effective measures aimed at ensuring the independence of the judiciary and the impartiality of judges, criminal procedure legislation also needs to be improved. In particular, the article suggests that reforms should be aimed at overcoming “formalism” in the course of consideration of applications for permission to conduct covert investigative (detective) actions.

Iura novit curia: доктринальные суждения о применении норм права в уголовном процессе

The author continues the recent research on the legal status of the conclusions of a legal specialist in the Russian criminal proceedings. The ambiguous approaches of judicial practice are shown and an attempt to harmonise them with theoretical provisions of criminal procedure is made. In general, such conclusions are a way of the accused to defend against the accusation, and are admissible both in the legislation and in the judicial process.

Standard of proof ‘beyond reasonable doubt’ in criminal proceedings: analysis of national and international experience

It is stated that, according to the standard of proof beyond a reasonable doubt, if there is proof beyond a reasonable doubt of the defendant’s guilt, it is sufficient for a conviction, and it is also undisputed that such a reasonable doubt must be evaluated according to the evidentiary difficulties of the particular case, as well as according to the crime committed. . The standard of proof beyond a reasonable doubt is the most acceptable standard in criminal proceedings for a fair trial. At the same time, indicating the need for courts to use this standard of proof, the legislator does not define its concept and does not reveal its meaning. Reasonable doubt is a frequently used term that is probably well understood but difficult to define. It is not merely a possible doubt, as everything related to human activity that depends on evidence that gives rise to moral certainty is subject to some possible or imaginary doubt. Reasonable doubt, then, deals with a state of affairs that leaves the judge’s mind in such a state that he cannot say that he feels a firm conviction that gives rise to moral certainty about the truth sought. If there is a reasonable doubt as to the proof of guilt, the accused is entitled to the benefit of the presumption of innocence and to be acquitted. Thus, evidence must establish the truth of the facts in a way that produces reasonable or moral certainty, that is, a certainty that convinces, guides understanding and satisfies the minds and judgements of judges. This, he concludes, is what counts as proof beyond a reasonable doubt. The adoption of the standard of proof beyond a reasonable doubt reflects the high degree of probability required to develop the personal certainty (conviction) necessary for the purposes of conviction in criminal proceedings (guilt beyond a reasonable doubt), ultimately if there is sufficient evidence of a criminal act, and not, it should be emphasised, complete, total or absolute proof. The article examines the legal positions of the Criminal Court of Cassation as part of the Supreme Court and the European Court of Human Rights with regard to determining the content of the standard of proof ‘beyond reasonable doubt’ in criminal proceedings. In the doctrine of criminal procedure, the concept and content of the standard of proof ‘beyond reasonable doubt’ is the subject of considerable attention of procedural scholars.

Korean Competition Law Enforcement: Recent Developments

This article explains recent developments in Korean competition law enforcement from three perspectives. First, the Korea Fair Trade Commission (‘KFTC’) has recently improved its public enforcement procedures, focusing on preventing the collection of irrelevant materials during its on-site investigations, ensuring confidentiality in the KFTC’s investigations against the legal departments of investigated companies, and enabling more active participation from respondents in expressing their opinions. Second, the most significant progress in the enforcement of Korea’s Monopoly Regulation and Fair-Trade Act (‘MRFTA’) is evident in criminal enforcement. The KFTC and various other national institutions are actively employing criminal penalties, compelling companies to consider criminal procedures early in their response to investigations. Third, advancements have also been made in private enforcement, including (1) increased damage suits by parties injured by MRFTA violations, (2) derivative suits initiated by shareholders to recover company losses, and (3) recent legislative efforts to promote private enforcement through injunctions that prevent and prohibit violations and assist the injured parties in proving damage.

Юридическая хроника

In the September Chronicle, read comments on the criminal case of Pavel Durov in France, on the laws on amnesty for business crushing, on mining, on the introduction in the Criminal Procedure Code of an online form of meetings between a advocate and a prisoner, on changes in the foreclosure of a bankrupt’s only home, and on new approaches of the Supreme Court to the recognition and enforcement of international commercial arbitration awards.

피해자변호사제도에 대한 소고

The victim protection system appears to be focused only on victim protection in Korea. The victim lawyer system is one representative system that shows the tendency of this victim protection system. This study examined the victim lawyer system, mainly focusing on which victims could get legal assistance, and suggest improvement measures. In an adversarial system, the prosecutor and defendant are central to the procedure, while the victim is totally forgotten. However, the victim should be respected as a human being. As the victim is another stakeholder with the defendant and affected by the consequences of criminal procedure, the victim also shares a great interest in criminal procedure as a way of justice. Not only that, as one of the parties to the accident with the defendant, it would be fair if the victim could get the opportunity to participate in criminal procedure as the defendant has. At this point, the victims' protection and participation should be considered in the criminal system. However, there is a limitation that victims' protection and participation should not infringe on the defendant's rights. Only a few laws, including the Sexual Violence Punishment Act, provide the victim lawyer system. However, the victim lawyer's role should not be restricted to the victim's guardian but should be expanded to assist the victim in participating. Today, many victims want to participate in criminal procedure, and it's gaining remarkable consensus in society. As the law or system should reflect society or culture, the victim lawyer system necessarily expands to help victims' participation generally. Compared to Germany and France, this country introduced victim lawyers to assist victims' participation, and all the victims typically have the right to legal assistance. As ruling the victim lawyer system and nation-appointed lawyer system separate, it could help the victims participate in criminal procedure and protect vulnerable victims. Therefore, a victim lawyer system must be enacted in the Criminal Procedure Act to establish a general rule, and, in particular, some acts should deal with a nation-appointed lawyer system of victims to protect vulnerable victims.

형사절차상 범죄피해자 권리에 대한 수사경찰관의 인지도 측정도구 개발 및 타당화

The purpose of this study was to develop and validate a measurement scale for investigative police officers’awareness of crime victims’rights in criminal procedure, and to diagnose the current level of awareness of investigative police officers in practice. A total of 88 questions (5 point Likert scale) on crime victims' criminal procedural rights were developed based on relevant laws and regulations, and data collected from 323 investigative police officers were analyzed for validation. As a result of the factor analysis, the awareness of investigative police officers were divided into 12 factors: ① the right to have a trusted person present during police investigation, ② the right to request a police report under a pseudonym, ③ the right to request recusal for certain investigators, ④ the right to be informed of the results of police investigation, ⑤ the right to appeal a police decision not to send the case to prosecution, ⑥ the right to appeal the decision to suspend an investigation, ⑦ the right to be informed of matters related to the prosecution, ⑧ the right to appeal against the prosecution's decision and request for reconsideration, ⑨ the right to be heard at the trial stage, the witness support system, the right to access and transcribe trial records, and the right to have legal terms explained. The descriptive statistical analysis showed that the current level of the awareness of investigative police officers was generally high and the deviation was small (M=3.35, SD=0.73). However, compared to the level of awareness of the rights at the police phase (①~⑥) (M=3.66~3.91, SD=0.86~1.02), the level of awareness of the rights at the prosecution and court phases (⑦~) was relatively low and the variation was large (M=2.36~3.02, SD=1.05~1.19). The correlation analysis showed that the higher the level of awareness, the more written guides to victims’ rights were given to the victims, and the more verbal explanations were given to help them understand. The results of this study can be used as a basis for evaluating the effectiveness of crime victims’ rights and awareness training programs for investigative police officers in the future.

프랑스·독일·일본에서의 범죄피해자의 형사절차 참가제도와 우리나라에 대한 시사점

France and Germany, that have adopted private prosecution or recognize private participation in litigation, guarantee crime victims the right to participate in criminal proceedings, allowing them to seek redress and protect their rights. However Japan and Korea, which operate criminal procedures based on the principle of state prosecution, perceive the state criminal procedures as an adversarial relationship between the criminal justice agencies and the criminals, and views crime victims as mere objects of protection and support or as targets of preferential measures. Recently, Japan has introduced a system that guarantees crime victims the right to participate in criminal proceedings to a limited extent. Korea attempted to revise the law to introduce a victim participation system that was much weaker than that of France or Germany, and even Japan, but it was ultimately frustrated. Whenever the neglect of the protection of the human rights of crime victims becomes a social issue, the Korean government has established and implemented measures to strengthen the rights of victims. However, except for victims of crimes that attract social attention, such as sexual assault or stalking, the poor status of victims of crimes such as murder, assault, and fraud has not improved much. With only these intermittent and sporadic measures, it is difficult to properly fulfill the state's duty to protect crime victims. In order to improve the poor status of victims, it is necessary to create a principle provision on the protection of suspects' rights and participation in criminal procedures in the Constitution, and declare at the beginning of the Criminal Procedure Act that the rights of crime victims should be protected. And then a device must be established to protect crime victims in a series of criminal procedures such as investigation, prosecution, trial, and execution of sentence. In particular, it is necessary to build a system that stipulates the right of crime victims to express their opinions at each important stage of the criminal procedure, such as the conclusion of the investigation, decision not to prosecute, decision on detention, pronouncement of judgment, and suspension of execution of sentence, and to notify the progress of the criminal procedure.

형사사법절차에서 피해자재판절차진술권의 제 문제와 개선방안

Due to notification issues during the investigation stage, it is difficult for victims to exercise their right to testify, and in the procedure for filing an objection to the police’s decision not to forward the case, the complainant is excluded, leading to the infringement of victims' rights in cases of sexual violence or abuse involving children or people with disabilities. The Criminal Procedure Act does not contain general provisions regarding the right of victims, such as complainants, to request evidence preservation. There is also no provision in the Criminal Procedure Act for notifying victims of the date of the pre-detention suspect interrogation. The pre-detention suspect interrogation procedure only includes provisions for the attendance of the victim's lawyer and the right to express opinions. Despite the consideration of the risk of harm to the victim in cases of release on bail, the procedure for reviewing the validity of detention does not include a provision for confirming the victim's intention. Even if a summary trial proceeds to a formal trial, the victim is not notified. Legislative attempts have been made regarding the right to access and copy records, but these have not been successful. When a defendant requests a jury trial, there is no regulation for notifying the victim or confirming the victim's intention. In the trial process, the victim's right to express opinions according to the Criminal Procedure Rules does not include provisions for protecting the victim, such as non-disclosure or the exclusion of the defendant. There is no explicit regulation ensuring notification and the opportunity to express opinions in bail procedures. There is also no explicit regulation regarding the procedure for confirming the victim's opinion in the case of a surprise deposit. To substantiate the victim’s right to testify in the criminal justice process, it is necessary to establish general provisions in the Criminal Procedure Act defining the concept of the victim and establishing the victim's legal status. Furthermore, it is necessary to establish general provisions regarding the criteria, qualifications, and procedures for appointing court-appointed counsel for victims, and to legislate a system for victim participation in criminal proceedings.

형사절차에서 범죄피해자 지위의 재정립

This paper begins with the question of why the participation of crime victims is necessary in criminal proceedings. Is a procedure that excludes the victim fair? Does the criminal responsibility borne by the defendant realize justice? To answer these questions, a paradigm shift and a reinterpretation of the position of crime victims are needed. First, the paper addresses the fundamental question of why it is essential to find the position of crime victims in criminal proceedings. In the process of answering this question, the concept of restorative justice is introduced. Historically, the legitimacy of state punishment was established by excluding private vengeance. Therefore, a mechanism focused on resolving issues between the parties might be seen as a regression to the era of revenge, posing a potential threat to the carefully constructed criminal justice system. This perspective has led to distortions in the understanding of restorative justice. The paper seeks to correct these distortions by introducing the basic principles necessary for applying restorative justice within the judicial sphere. Finally, it returns to the initial question, finding an answer to why the participation of victims in criminal procedures is essential. It emphasizes the need to consider the various perspectives and positions of those affected by the crime, recognizing the impact on their lives. The paper suggests that we seek answers together regarding the scope of criminal law and the realization of justice.

양형과 피해자

CONSTITUTION OF THE REPUBLIC OF KOREA ensures the rights of crime victims at the fundamental rights level by stipulating the right to make statements during judicial proceedings and the right to claim assistance. The necessity of guaranteeing the rights of victims in criminal procedures is an important criterion used in practice when making judgments on specific cases nowadays. Particularly in recent rulings, issues include: ① the revision of sentencing guidelines and changes in the content of ‘non-prosecution requests’ and ‘agreements’ through these revisions, ② the newly implemented criminal deposit, and ③ the distinction and relationship between prosecution conditions and sentencing factors. Traditionally, criminal law has focused on offenders, with victims and their conditions not being a primary concern. Discussions on penal theory have often overlooked victims. To address this, the concept of “restorative justice” is sometimes introduced. However, the status of victims can also be secured through perspectives that view crime as a violation of mutual recognition relationships or through the positive general prevention theory in penal theory. However, considering the provisions of the Criminal Act and the Court Organization Act regarding sentencing, taking victim recovery into account during sentencing can be justified from the perspective of special prevention. Additionally, agreements or deposits should also be seen as meaningful in relation to victim recovery.

형사사법절차의 방해 및 왜곡에 대한 소고 - 조직적 사법방해 및 권력결탁적 법왜곡을 중심으로

The discovery of substantive truth is the purpose and raison d'être of criminal procedure law. However, the end does not necessarily justify all means. Criminal proceedings must be conducted by appropriate and fair means. This requires cooperation between the court, the investigating agency, the suspect and the accused, the defense, and the various parties involved in the criminal proceedings. However, obstruction of justice and perverting the law can make the criminal justice process unfair. Among the types of obstruction of justice, the main issue has been whether to punish false statements by witnesses. There are opposing views on whether a general provision should be introduced to punish obstruction of justice. On the other hand, views are divided on whether it can be introduced on a limited basis. However, it is necessary to punish systematic obstruction of criminal proceedings by making false statements to witnesses, especially in political crimes, corporate crimes, and organized crime. It is also possible for officials who are conducting criminal proceedings to distort the law and undermine fair criminal proceedings. Therefore, there are arguments in academia and the National Assembly to introduce a separate crime of perjury. There is a general consensus among academics that the law should be changed. However, there is a division of opinion on the specific method. Perjury can be used by those in power as a tool to violate the independence of the judiciary. Therefore, it is necessary to ensure that those in power, such as high-ranking officials, cannot unduly influence the criminal justice process and distort the law. In addition, prosecutors and judges should not be allowed to distort the law by colluding with those in power. Therefore, even if a crime of distortion of the law is introduced, it is proposed that the penalties should be limited to those who distort the law through the intervention of political power and those who distort the law for political or private interests. It is not advisable for the discussion of obstruction and distortion of the criminal justice process to be rushed into legislation in the midst of political debate. It should be fully debated in the academic realm.

SPEEDING UP JUSTICE: A CRITICAL ANALYSIS OF THE PRINCIPLE OF SPEEDY, SIMPLE, AND LOW-COST TRIALS IN INDONESIAN CORRUPTION CASES

This article investigates the issue of delays in law enforcement's implementation of criminal law in corruption cases, particularly in relation to the principles of speedy, simple, and low-cost trials. Utilizing a normative legal method and statutory approach, alongside case studies, the study explores the persistent delays in the Indonesian criminal justice system despite the emphasis on these principles. Delays in the reading of indictments have raised suspicions and potential discrimination in the enforcement of corruption cases. The right of a defendant to a prompt resolution, as outlined in the Criminal Procedure Code aligning with the shift from an inquisitorial to accusatorial principle and human rights development, is highlighted. However, the findings reveal that these principles are not consistently and effectively applied in Indonesia's criminal justice system. Key issues identified include prolonged, complex, and costly law enforcement processes in corruption cases, as well as obstacles hindering the swift and cost-effective resolution of state losses. Discriminatory practices, though not overt, manifest in various stages of the legal process, impeding the realization of fast, simple, and low-cost justice. To address these challenges and ensure fair trials, law enforcement must prioritize ethical and moral considerations in their practices

Comparative Legal Analysis of the Use of Electronic Format of Criminal Cases and the Procedure under the Code of Criminal Procedure of the Russian Federation

Comparative Legal Analysis of the Use of Electronic Format of Criminal Cases and the Procedure under the Code of Criminal Procedure of the Russian Federation

The Legal Implications of the Criminal Procedure (Identification) Act, 2022: A Comprehensive Analysis of Constitutional, Criminal, and Forensic Dimensions

The Legal Implications of the Criminal Procedure (Identification) Act, 2022: A Comprehensive Analysis of Constitutional, Criminal, and Forensic Dimensions

아동 범죄피해자 진술의 증거능력과 헌법상 반대신문권 - 미국법원 판례의 비교법적 고찰

The defendant's right to cross-examine witnesses is established as a constitutional right under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Our criminal procedure law also provides for the right to cross-examine, and the Constitutional Court has determined that this right forms a core part of the constitutional right to a fair trial. However, when the victim of a crime is a child, the issue arises of how to ensure the defendant's right to cross-examination in such cases. This presents a conflict between guaranteeing the defendant's right to cross-examine and protecting the interests of the child victim. It also touches on the issue of the strict application of the hearsay rule versus the recognition of reasonable exceptions. In the United States, various cases have raised issues concerning the protection of child crime victims and the guarantee of the Confrontation Clause under the Sixth Amendment. U.S. case law has addressed controversies in instances where child victims testified using one-way closed-circuit television, or where teachers testified in court about statements made by the child rather than the child testifying directly. Additionally, a recent case in Virginia brought into question the admissibility of forensic interview recordings of a child victim as evidence. In contrast, the Constitutional Court of Korea ruled that a provision of the Sexual Violence Punishment Act, which recognized the admissibility of video statements by sexual violence victims under the age of 19, violated the Constitution by infringing on the defendant's right to cross-examination, which is a core component of the constitutional right to a fair trial. Following this decision, the Sexual Violence Punishment Act was amended to harmonize the defendant's right to cross-examination with the protection of child victims. This paper examines U.S. court rulings on the admissibility of child victim statements, the decisions of the Korean Constitutional Court, and recent amendments to the Sexual Violence Punishment Act. It explores the principles and exceptions concerning the application of the hearsay rule and the right to cross-examination in cases where the victim is a child, as well as rational approaches to the operation of these systems.