검사작성 피의자신문조서의 증거능력에 대한 입법적 제언

Legislative suggestions for admissibility of evidence of protocol written by prosecutor

There is a criticism that there has been a harmful effect of the protocol-based trial on the criminal justice practice in Korea after the enactment of the criminal procedure law. The amendment process of the current Criminal Procedure Law, which promoted the reform of the overall criminal procedure, was compromised for these various reasons : Differences in specific understanding of criminal litigation ideology and failure to overcome the realistic burden of the overall legal case due to rapid changes. In particular, in the case of the evidence capacity requirement of the protocol containing interrogation of a suspect written by prosecutor – the most controversial theme -, the requirements have been formulated and new requirements have been added as a result of changes in the times, compared with the past regulations. However, it is evaluated that the demands of the court and academia and the demands of the prosecution are compromised in practical contents. This article discusses the debate about the legislative proposal with the question of the need for legislative debate on the evidence capacity of the protocol containing interrogation of a suspect written by prosecutor. First, I would like to elaborate on the legislative process of the evidence - related regulations for the protocol containing interrogation of a suspect written by prosecutor of the present law and to draw out the issue for the legislative discussion through analysis on the interpretation theory of the present law. Then, the implications for the legislative direction are sought through the review of comparative legal data. Finally, I propose the amendment direction of the regulations on evidence ability of the protocol written by prosecutor by combining these discussions. This article as a conclusion of the discussion, first of all, proposes to revise the requirements of evidence capacity of the protocol by prosecutor as content approval by the accused like a protocol by police investigator, and suggests to strengthen the special condition requirement of circumstantial guarantees of trustworthiness as the second best measure when such revision is difficult immediately.