판례평석(判例評釋) : 변호사의 증언거부권 행사와 형사소송법 제314조의 진술불능사유 = Analysis on Court Decesion : Exercise of the right to refuse to testify and Grounds of the statement incapacity of the Article 314 of the Criminal Procedure Act

다국어 초록 (Multilingual Abstract)

Korean Criminal Procedure Act has the regulations about the hearsay evidence( article 310-2) and the exceptions of rule against hearsay (article 311-316). Therefore as a general rule, hearsay statements or documents are not admissible as evidence in accordance with the provisions of Article 310-2 of the Criminal Procedure Act. It is not right that a written opinion always must amount to the hearsay evidence. Only if a written opinion meets the necessary conditions about the hearsay, the written opinion comes under the hearsay evidence. Consequently the written opinion of this case corresponds to the hearsay evidence. And this written opinion of this case belongs to the a written statement prepared by a defendant or any other person of the Article 313 Clause 1. But at this case defendant did not admitted the ``authentication of the formation``, This written opinion has no admissibility of evidence by the Article 313 Clause 1. But we can consider whether the Article 314 can be applied to this written opinion. Because in case of Article 312 or 313 of the Korean Criminal Procedure , if a person who is required to make a statement in a preparatory hearing or a trial is unable to make such statement because he is dead, ill, or resides abroad, his whereabout is not known, or there is any other similar cause, the relevant protocol and other documents are admissible as evidence: Provided, That it is admissible only when it is proved that the statement or preparation was made in a particularly reliable state(Article 314). Therefore it is an issue of law Whether attorney`s reject of the testimony by the Article 149 comes under the Grounds of the statement incapacity specially ``any other similar cause``. To this issue, Supreme Court( 2009Do6788) decide as follows : In light of the current Article 314 of the Criminal Procedure Act`s contents, amendment purposes, and provisions regarding the right to refuse to testify, a case where a witness present at court legitimately refuses to testify on grounds of Articles 148 and 149 of the Criminal Procedure Act does not qualify as any other similar cause provided by Article 314 of the Criminal Procedure Act. I think that attorney`s right to refuse to testify is based the express provision of the Criminal Procedure Act, and at this case Lawyer as witness refused to testify spontaneously. Accordingly reject to testify does not amount to the Grounds of the statement incapacity of the Article 314. Eventually Decision of the Supreme Court is right.