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피고인의 진술녹음의 증거능력

Title
피고인의 진술녹음의 증거능력
Other Titles
The Admissibility of the Recording of Defendant"s Statements
Author
서태경
Keywords
Recording medium; Recording of defendant’s statement; Admissibility of evidence; Hearsay rule; Criminal Procedure Act Article 313 paragraph (1); 녹음매체; 피고인의 진술녹음; 증거능력; 전문법칙; 형사소송법 제313조 제1항
Issue Date
2015-11
Publisher
한양법학회
Citation
한양법학, v. 26, NO 4(통권 52집), Page. 83-106
Abstract
In the criminal cases, the recording of defendant’s statements to threaten the victim or to confess his crime are often submitted as evidence to prove the charge in fact. However, it is important to disambiguate the admissibility of the recording medium because this issue implies some arguing points. It is acknowledged that hearsay rule should apply to the recording of statements, like written statements. Nevertheless, some critics do not agree with that the defendant"s confession recorded by the investigative agencies can be used to prove the facts constituting the crime charged. Also, regarding to the admissibility of the recording by individuals who are not he investigative agencies, there are several discrepancies among viewpoints. If the recording of the defendant"s statements to confess to the crime made by the investigative agencies satisfies the requirements of Criminal Procedure Act Article 312 paragraph (1)to (3), it may be admissible. However, in the light of CRIMINAL PROCEDURE ACT Article 312 paragraph (2), Article 381-2 paragraph (2) and ACT ON SPECIAL CASES CONCERNING THE PUNISHMENT, ETC. OF SEXUAL CRIMES Article 30 paragraph (6), ACT ON THE PROTECTION OF CHILDREN AND JUVENILES AGAINST SEXUAL ABUSE Article 26 paragraph (6) the video-recorded product containing a defendant"s statement made by the investigative agencies is not admissible to prove the facts constituting the crime charged except for cases in which there are special regulations that allow a video-recorded product to use as proof of the facts constituting the crime charged. Therefore, the recording of the defendant‘s statements to confess to the crime made by the investigative agencies cannot be used to prove the facts constituting the crime charged, because the recording of defendant’s statement and the video-recorded product are similar in nature as a proof. On the other hand, in the case of individual recording, if it satisfies the requirements of CRIMINAL PROCEDURE ACT Article 313 paragraph (1), it may be used to prove the facts constituting the crime charged. In other words, if it is proven to be genuine by the acceptance of the defendant at a preparatory hearing or during a public trial, such recording medium is admissible. When it cannot be proven by the statement of the defendant at a preparatory hearing or during a public trial, for it"s being admissible, it should be proven to be genuine by the statement of the individual, who recorded the statement of the defendant, at a preparatory hearing or during a public trial and, if it goes to prove that the defendant"s statement was made in a particularly reliable state.
URI
http://www.dbpia.co.kr/Article/NODE06570942http://hdl.handle.net/20.500.11754/28740
ISSN
2383-8507; 1226-8062
Appears in Collections:
SCHOOL OF LAW[S](법학전문대학원) > Hanyang University Law School(법학전문대학원) > Articles
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