판례분석 : 어두운 시대의 소송기술 -재일교포 간첩사건에서 영사증명서- = A Legal Approach To The Consular Certificate

다국어 초록 (Multilingual Abstract)

This article reviews legal issues of the certificates formally confirmed by the Korean consuls for the espionage cases under the prior authoritarian regime. The consular certificates issued by the Korean consuls grounding in Japan played the key role in the criminal procedures against the Koreans who lived in Japan. Structurally, the consular certificate had several fatal defects in terms of legal system or criminal evidence. But it seems that lawyers have overlooked illegality of the documents because of ignorance of the realities of consular certification or the political or structural limitations of espionage cases. The courts seem to have regarded the certificate as a proof of special credibility or a reasonable proof according to art. 315 no.1 or 3 of criminal procedure act. Recently, the [Commission on Purging Past under the Ministry of Defence] investigated the details of the consular certificate in some espionage cases and found that most consular certificates were totally different from the formal certificate specified in `Vienna Convention On Consular Relations` or `Act On Certification Of Korean Consul Serving In Foreign Countries`. Issuers of the consular certificates were de facto the secret agents. There are some doubts if they could issue the certificate formally at the request of the secret intelligence agencies, although they were entitled to assume the consulship in consideration of diplomatic relations. The prosecutors abused the title and public trust concerning the consular certificate and disregarded the special duty of integrity and objective truth. From the viewpoint of criminal procedure law, the consular certificates are nothing other than investigator`s personal opinion which includes doubts or rumours concerning the accused or the third culprits. The certificates should not have been submitted to court, for it was not proof but investigating agent`s opinion. The consular certificate seems to have destructed basically the adversary structure of criminal process. In most cases, the third parties were automatically treated in the criminal procedure as spies, depending on consul`s personal description. In conclusion, convictions which were mainly based on illegal detention, torture, enforced self-incrimination and consular certificate should be annihilated by way of the judicial retrial.