수사과정의 기록제도에 관한 소고 - 형사소송법 제244조의4 적정성 검토를 중심으로

A Study on the system of the recording the interview during investigation - Focusing on the appropriation of Art. 244-4 of Criminal Procedure Act

Transparency in criminal investigation procedure is critical in achieving the goals of criminal procedure not the least of which includes the protection of human rights and getting to the truth. In fact it is increasingly a global effort. To this end, through the revision of the Criminal Procedure Act of 2007(hereafter, CPA), South Korea has introduced various measures such as video-recording and investigation process recording related provisions. In order to increase transparency, accurate recording of statements during criminal investigations should be the first priority in setting policy. New legislation that would require mandatory electronic recording during interrogation by investigating agencies of arrested or detained suspects or of criminals that have committed serious offenses is necessary. However, while the CPA allows for the discretion of the investigating agency whether or not to implement electronic recording of interrogations, it does require a written record of the time the interrogation begins and ends, of any breaks, and of circumstantial situations during the investigation. Further, the Supreme Court has also ruled that this latter recording obligation applies also to the protocol written by the suspect or third party. Although accuracy in recording of events is imperative, the control exerted by this regulation can be excessive.Recording the interview in and of itself is not the core element of Due Process, and thus it is not imperative to record the interview in minor criminal cases or in interviewing witnesses. Internal regulation of investigative agencies may be more appropriate. It is recommended that CPA article 244-4 be repealed in whole or in part. The admissibility of protocols that violate the aforementioned article should be decided severally after careful consideration of the level and type of violation. Only in the case of serious violations should the protocols be deemed inadmissible. Finally, in keeping with the advancement of technology in the 21st century, more effort is needed to increase transparency in interview recording by the use of various electronic devices.