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Theoretical Background of a recital of regulation, including a protocol of German Criminal Procedure Law and comparison with Korean Criminal Procedure Law

  • DONG-A LAW REVIEW
  • 2015, (67), pp.143-164
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

kwon oh geol 1

1경북대학교

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ABSTRACT

The important issue in the process of the fact-finding is as follows. If direct evidence does not exist to the fact in issue, is it possible to use the indirect evidence ? More concretely, could be allowed it for the judge to use the protocol made by the investigation process at the court. At the study on the above, We can know risk of the fact finding by using the substitute evidence, Therefore German Criminal Procedure Law(StPO) Article 250 provides as follows : In case that some evidence regarding the facts is based upon an individual's perception, Judge must ask directly to the person about the facts. The direct questioning can not be replaced as the statements or written statement that was made during investigator's questioning. German Criminal Procedure Law' Article 250 needs direct evidence for the fact finding. But Article 251 and 255a recognize for the finding real truth as best as possible use of the closest equivalent to the evidence of alternative evidence. Also ‘The direct evidence of the principles’ and ‘Investigated ex officio obligation’ at the German Criminal Procedure Law are not each other opposing concepts, but complementary principles. The two countries-Korea and Germany- about hearsay(alternative) evidence have approved the exceptional admissibility under the certain conditions, and the basis of background of the exception also are same. Detailed Code of Criminal Procedure about hearsay(alternative) evidence, certain exception's conditions at the German Criminal procedure Law's are relatively clear than Korean Criminal Procedure Law. And Korean Criminal Procedure Law use very abstract terms such as ‘True existence of evidence’, ‘Recognition of content’, ‘Particularly reliable source of a situation’ etc. Therefore Korean Criminal Procedure Law has so many problems in the face of theory of interpretation. From the De lege ferenda, even if it is inevitable to use abstract wording, Korean Criminal Procedure Law' Hearsay regulation must be repaired. At this work it is desirable that we refer to the German Criminal Procedure Law.

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