사인 작성 진술서면과 수사보고서 = Types of Hearsay Evidence and Requirements for Admissibility

다국어 초록 (Multilingual Abstract)

The Supreme Court of Korea has traditionally applied Article 312 of the Criminal Procedure Act to statements or records prepared by foreign investigative authorities, while applying Article 313 to documents produced in quasiinvestigative
procedures conducted by institutions such as the National Election Commission, the Financial Supervisory Service, the Public Officials Ethics Division, and the National Tax Service. The Court has also applied Article 313 to investigation reports prepared by investigative agencies based on telephone interviews with victims or accomplices, as well as to opinions prepared by defense attorneys and sent to their clients.
However, in recent decisions, the Court has denied evidentiary admissibility to certain materials—such as video recordings of victim interviews conducted by statement analysts at the prosecutor’s request, records of criminal mediation prepared by mediation commissioners based on telephone conversations with suspects and victims, and opinion letters prepared by defense attorneys based on their clients’ statements and submitted to the police—on the ground that neither Article 312 nor Article 313 of the Criminal Procedure Act is applicable to such materials.
Above all, it is essential to establish a consistent and clear standard for distinguishing (1) whether a record was prepared by an investigative authority, (2) a statement prepared by a private person during the course of an investigation, or (3) a statement or document containing a statement prepared by a private person in a purely private setting unrelated to any investigation.
With respect to documents prepared by a private person containing the defendant’s statement, two principles must be made clear. First, under the main clause of Article 313(1) of the Criminal Procedure Act, the authenticity of such a document must be verified through the handwriting, signature, or seal of the person who prepared it, not by the signature or seal of the original declarant. Second, the authenticity of the document may be established by the defendant’s testimony at trial; however, if the defendant denies authenticity, the preparer’s in-court testimony and the existence of circumstantial guarantees of trustworthiness are additionally required (Article 313(1) proviso).
Furthermore, as to statements prepared by persons other than the defendant outside the investigative process, it must be clarified that (1) under the main clause of Article 313(1), evidentiary admissibility is generally recognized where the preparer’s handwriting, signature, or seal and the preparer’s in-court acknowledgment establish authenticity, and (2) under Article 313(2) (main clause and proviso), if the preparer denies authenticity, evidentiary admissibility requires proof of authenticity by objective means and an opportunity for cross-examination by the defense.