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KCI등재 학술저널

전문법칙 적용의 예외요건으로서의 특신상태

‘particularly realiable state’ as Exception of Hearsay rule in Korean Criminal Procedure Act

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Korean Criminal Procedure Act regulate Hearsay rule as follows: in Principle any document which contains out of court statements or any testimony which imports another person’s statement shall not be admitted as evidence to prove the truth of the matter asserted. As Exception of Hearsay rule, paragraphs from Article 312(Protocol etc. Prepared by Prosecutor or Senior Judicial Police Officer) to Article 316 (Statement of Hearsay) grant admissibility to hearsay evidence where the requirement to be in a ‘particularly reliable state’ is recognized. In the judgment dealt with in this article, the Supreme Court of Korea ruled that the particularly reliable state of Article 314 should be understood based on basic principles such as Unmittelbarkeit der Hauptverhandlung, and that the legal principles related to this state of Article 314 should be applied to the special status of Article 316. I agree with this position of the Supreme Court. The meaning of the particularly reliable state as Exception of Hearsay rule cannot be understood based on the Protocol of interrogation of the suspect in preparation of the prosecutor, as is the case with many Authors.

Ⅰ. 대상판결

Ⅱ. 형사소송법 개정논의와 전문법칙

Ⅲ. 전문법칙, 그 예외와 특신상태

Ⅳ. 맺으며: 입법과 해석

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