개정 형사소송법 제312조 제1항 시행에 대한 경과규정 부재와 그로 인한 실무상 혼란

The Absence of Transitional Provision For The Enforcement of Article 312 (1) of The Amended Criminal Procedure Act And Resulting Confusion In Practice

After the enactment of the Criminal Procedure Act, if the defendant acknowledges the authenticity of protocol concerning interrogation of criminal suspect prepared by prosecutor, admissibility of evidence of the protocol has been recognized. However, Article 312 (1) of the amended Criminal Procedure Act will be enforced, adding contents admission as a requirement for granting admissibility of evidence to the protocol prepared by the prosecutor after Jan. 1st, 2022. Legislators amended the Criminal Procedure Act on Feb. 4th, 2020 and took measures to prevent confusion in practice by allowing it to take effect in case of Article 312 (1) from Jan. 1st, 2022 with a grace period. However, Article 312 (1) of the amended Criminal Procedure Act shall apply immediately to the current accused cases after Jan. 1st, 2022, so that the amended article shall apply the cases prosecuted before the enforcement date. In this case, it may take several trial dates for examination of evidence to be completed, the article before amendment can be applied even if the case is prosecuted on the same day. In consequence, it is expected that the defendant may overissue objections or appeal related to examination of evidence to be subject to the amended Criminal Procedure Act in favor of themselves. Any unconditional application of a new statute from a certain time when it is enacted or amended to change the law and order can cause a number of problems and considerable confusion. Therefore, it is necessary to take measures to ensure that the transition to a new law and order is carried out smoothly without different interpretations or confusion, such as interim measure and applicable example . Finally, the possible confusion in practice resulting from the enforcement of Article 312 (1) of the amended Criminal Procedure Act is due to the absence of interim measure or applicable example. Thus, it is necessary to prepare interim measure or applicable example as soon as possible before the enforcement date.