참고인진술의 확보방안에 관한 연구 -참고인 강제구인을 중심으로-

Abstract

The purpose of the Criminal Procedure Code is the Discovery of the Substantive Truth through Due Process of Law. The discovery of the substantive truth cannot be made only with the confession of the suspect. It is the Statement of the Witness that can compensate for the confession of the suspect. However, there is no way to arrest the witness who does not respond to the summon of the investigative agency in current law system. Prosecutors want to perform the coercive summon on the witnesses who do not respond to the summons. But the Court, Scholars and various Human Right organizations object it because the coercive summon would infringe the human rights and they may make more efforts in the investigation of the witnesses rather than finding the material evidences if they can arrest the witnesses who are merely supporter of the investigation. Because of these objections, many proposals by Ministry of Law and the Prosecution have not been enforced. However, it was reported that the Ministry of Law would submit an Amendment Proposal of Criminal Procedure Code to the Congress in October 2010 so that they could perform the coercive summon on the material witnesses. The Ministry asserted that it had already been enforced in the developed countries and it is necessary to solve grave crimes. On this matter, this article addressed the objection against the coercive summon of the witness in principle. It is because they can gather enough evidences utilizing the provisions in Criminal Procedure Code such as Evidence Preservation Request (Article 184 of Criminal Procedure Code) and Witness Examination Request (Article 221.2 of Criminal Procedure Code). If it is not enough, they should investigate through visit, mail and phone interrogation and e-mail interrogation. However, if the investigation system in the developed countries has been in place and people's opinions on this matter converged, it can be introduced with the protection and compensation of the witnesses. The important conditions are it should be restricted to major offences falling under more than 10 years' imprisonment with the warrant by the judge.