중요참고인 출석의무제도에 대한 비판적 고찰과 참고인진술 확보방안의 제안

A Critical Consideration on Compelling a Material Witness to Attend and Testify, and Proposals for Securing a Witness Statement and Cooperation

The testimony of a material witness in criminal investigation plays an important role in determining the facts of a crime, proving guilt, and securing objective evidence. However, witness investigation depends on voluntary cooperation, leaving an investigative agency with no means to compel a witness’s presence and statement if a witness refused to cooperate. The Korean Department of Justice, in a 2010 pre-announcement of legislation, attempted to provide for this ability to compel the attendance of material witnesses. However, this bill never became law due to opposition stating that the bill violated the principle of voluntary cooperation and violated the rights of witnesses. However, the adoption of material witness compulsion remains an issue that may be reignited at any time for the cause of discovering substantive truth and processing cases in a timely manner. This paper therefore critically considers the arrest of material witness provisions in the Justice Department’s amendment bill. No doubt the Justice Department’s attempts to adopt legal means to compel the attendance of material witnesses is due to its usefulness for the discovery of substantive truth, in addition to preexisting means to secure witness testimony such as evidence preservation and application to examine witnesses. However, the solution contemplated by the Justice Department violates the principle of voluntary cooperation, and also the principle of due process pertaining to the suspect’s or defendant’s right to defense. Some call for adopting this compulsion of witnesses based on laws adopted by foreign jurisdictions, but these countries differ from Korea in their investigative environments, judicial systems, and the stature and authority of investigative agencies. The better alternative, therefore, is to raise the effectiveness of evidence preservation and applications to examine witnesses. In order to efficiently secure witness statements, the witness’s personal security must be guaranteed, measures must be taken so witnesses may be summoned and enter appearances conveniently, cost recompense made realistic through means such as day wages, and public consciousness raised through publicity and education so that witnesses will voluntarily cooperate with investigations.