형사소송법상 증거개시제도에 대한 법적 소고 －헌법적 평가 및 미국제도와 비교하여－

Abstract

The Korea criminal procedure law(hereinafter referred to as KCPL) was revised to introduce criminal discovery system which is similar to United States of America Federal Rules of Criminal Procedure (hereinafter referred to as FRCP) in 2007.6.1(effective in 2008.1.1). Discovery is one of the most important processes in KCPL. Criminal discovery is the process by which a criminal defendant can get information(books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items) about their case held by the prosecutor. The process of “discovering” the information is sometimes referred to as “disclosure” in USA. The purpose of discovery is to guarantee the defendant’s defense right originated from the principle of the presumption of innocence in criminal procedure. Also it is to reduce the possibility of innocent people’s conviction caused by prosecutor’s supression of defendant’s exculpatory evidence. This paper’s aim is to review whether our newly introduced discovery system will function well or not on the perspective of Constitution and USA discovery system which have been adopted for long time and so many trial and error experiences. KCPL article 266-3 provides that criminal defendant or his attorney can ask prosecutor to deliver some documents and physical evidence material to prosecution fact and punishment sentence after indictment. Even though Constitutional Court decided that defendant have the right to access and get documents and physical evidence in government possession, it is great change to permit defendant to obtain evidence possessed by government in criminal procedure law. The motive to revise KCPL and introduce discovery system might be from the result of Constitutional Court decision. It is very desirable to have a good system like discovery system because from the new discovery system, defendant’s right in criminal procedure became advanced. Regrettably, reading carefully revised discovery law, some deficient contents is found regarding the substantial protection of defendant’s right granted by Constitution. That is KCPL article 266-3(2) providing that prosecutor can limit the scope of discovery or deny defendant’s request to get documents or physical evidence if there are national security problem, the necessity to protect witness, the concern to lose evidence, the problem of investigation obstacle and so forth in case of disclosure of evidence asked by defendant. Consequently this article can not make defendant acquire material evidence exculpatory to his case. Especially the contents of KCPL 266-3(2) is too vague and broad to be constitutional. The purpose of this paper is to review the KCPL based on Constitutional perspective and USA law(Constitution Amendment 5th and the Federal Rule of Criminal Procedure 16). From my legal analysis by comparison with USA law aforementioned and the purport of Constitutional Court’s decision, I concluded that KCLP must be abolished.