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A critical study on the statement trial in criminal procedure
Mi-young Park
Department of Law, Graduate School
Chungnam N...
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A critical study on the statement trial in criminal procedure
Mi-young Park
Department of Law, Graduate School
Chungnam National University
Daejeon, Korea
(Supervised by Professor Gil-Mo Koo)
2020. 1. 3. The revised Criminal Procedure Act, which passed the National Assembly, changed the law to restrict the admissibility of the prosecution-written suspect interrogation protocol to the same as the suspect interrogation protocols for judicial police officers.
If the amendment is enforced, it will be fundamentally blocked from submitting the suspect''s interrogation protocol as evidence to the court unless the defendant recognizes the contents of the prosecutor''s interrogation protocols. Moreover, although the substantial authenticity can be proved through ''video recording and other objective methods'', the revised Criminal Procedure Act deleted the clause and did not open the way for giving admissibility of evidence to the suspect''s interrogationt protocol prepared by the defendant in any way other than ''recognition''.
At a time when the possibility of a protocol written by an investigative agency being submitted as evidence in court has been reduced, it is time for a change in the practice of trial that relies on a protocol written by the investigative agency and the practice of investigation that has focused on writing a protocol.
Although the protocol has potential errors and risks of hearsay evidence in terms of evidence law, the reality is that most of the investigation is devoted to writing the protocol, and the protocol is used as evidence if it passes the requirements set by the Criminal Procedure Act.
Korea''s Criminal Procedure Law declares hearsay rule under Anglo-American law, while exceptions to hearsay rule consist of unique forms consisting of those for investigative agencies'' protocols. In this legal system, it became natural for the investigative agency to concentrate to obtain statements during the investigation and submit them as evidence, and the court led to statement trial that carried out the proceedings to the extent that charges against defendant were confirmed in court, focusing on the protocol.
In the end, only by preparing a way to submit the evidence of the statement obtained in the course of the investigation as evidence to the court in a way other than the protocol, can we overcome the evils of the statement trial and realize trial-centeredness.
If the revised Criminal Procedure Act is implemented, the admissibility of the suspect''s interrogation protocol prepared by the prosecutor will be the same as that of the suspect''s interrogation protocol prepared by the judicial police officer, and the prosecutor will have to re-establish his role in reviewing the contents of the investigation by the police, conducting further investigation to the extent necessary for the prosecution, prosecuting, and strengthening the activities to maintain the public prosecution.
Prosecutors should consider investigating statements of suspects and the other human not to secure evidence, but to be a process to decide whether to prosecute them. If the prosecutor recalls that the defendant is in the position of an equal party during the trial process and believes that the suspect''s statement is confirmation of the party''s position rather than judging the suspect''s statement as evidence from the investigation process, it would be unnecessary to attempt to secure and maintain the suspect''s statement (especially confession). Also, the prosecutor should make efforts to secure unchangeable evidence against the defendant''s denial of the crime by conducting the investigation from a flexible perspective that the suspect can change his existing position at any time during the trial stage.
The court should keep in mind that it is the court that has relied on the protocol to create the practice of statement trial, and make efforts to strengthen its trial-centeredness centered on principle of verbal defence.
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