디지털증거의 진정성립 증명과 증거능력- 형사소송법 제313조 제1항의 해석과 관련한 판례의 비판적 검토 - = Proving the Authenticity of Digital Evidence andthe Admissiblity of Evidence - A Critical Review of Legal Precedents Concerning the interpretation of Article 313.1 of the Criminal Procedure Act-

다국어 초록 (Multilingual Abstract)

Ascribing to the unique characteristics of digital evidence ? such as its great potential, it being relatively easier to be tampered with, independence, its massive quantity, and it not being openly exposed ? there certainly exists a need for a fitting set of criteria on the admissibility of digital evidence. First and foremost, the prerequisite criteria for any digital evidence to be admitted are flawlessness·identification, reliability, originality, and so forth. In the case that digital evidence is hearsay evidence, it also needs to fulfill the criteria set forth in the exceptional clause of hearsay evidence. When digital evidence falls under the category of hearsay evidence as statements of evidence, the exclusive rule of hearsay is applied and hence Article 313 is applied. If the author of the digital document does not admit the authenticity of the evidence in the courtroom, the legal precedent is that the admissibility of that evidence is to be denied. Yet, such interpretation carries an unreasonable result that, even when the investigative agency seizes evidence under due process, the documents which the criminal compiled in private cannot be admitted as evidence if the defendant simply denies the authenticity of the evidence. Because the defendant``s admission made under conditions of reliability cannot be admitted, the realization of judicial justice through the finding of substantial truth is to founder. Determining the admissibility of evidence solely depending on the will of the defendant when the evidence is the admission of the facts of criminal conduct written by the defendant himself is essentially no different from completely excluding it from being considered as evidence. Consequently, such result can be said to significantly infringe upon the principle of free evaluation of evidence vested in the judge. In other words, such interpretation is an unjustified one that neglects the legislating purpose of Article 313 and the purpose of the 2007 Criminal Procedure Act revision. Furthermore, if the evidence in question is one that decisively proves the guiltiness of the defendant, the right to state in hearing proceedings and the right to equality of the victim can be greatly infringed upon. Therefore, the wording of Article 313 - if it is proven to be genuine by the maker or stater thereof by his testimony Interpretation of the Korean Criminal Procedure Act comes officially from The Korean Legislation Research Institute, specifically in its official translation of statutes of the Republic of Korea. - should not be interpreted to mean that the Article is applicable only when the author makes a testimony ``admitting`` the authenticity of the evidence. Such interpretation by the legal precedent must be altered. Rather, the verification of the authenticity of the evidence according to Article 313 should be interpreted to mean when the authenticity of evidence is proven considering not only the testimony of the maker or stater but also all other points of evidence. In this case, the testimony of the author does not necessarily have to be one that directly admits the authenticity of evidence. Nonetheless, because the testimony of the author must be heard, the opportunity to argue against the evidence is guaranteed to the author, and when the author is a third party other than the defendant himself the opportunity of cross-examination is guaranteed to the defendant. As a result, this sort of interpretation does not infringe on the principle of trial-based determination nor on the principle of directness. In addition, Article 313 needs to be rationally revised in accordance with the revision of Article 312. This is all the more so in order to bring an end to the previous irrational Supreme Court legal precedent and unnecessary debate on the matter in question. Moreover, the revision of the Article should include provisions on digital evidence as well.