Constitutional Review of Article 312(1)

of the Criminal Procedure Act

(17-1 KCCR 558, 2003Hun-Ga7, May 26, 2005)

In this case, the Constitutional Court found constitutional the relevant provisions of the Criminal Procedure Act ("Instant Provisions", hereinafter) that acknowledges the authenticity of a suspect interrogation transcript prepared by the public prosecutor even if the suspect later as a defendant denies its contents and especially grants admissibility as evidence when it has been

prepared under specially credible circumstances.

Background of the Case

Under the current Criminal Procedure Act, the hearsay rule does not admit into evidence a document containing a testimony given in lieu of one given on the day of or in preparation of the trial or another's testimony describing that testimony, in absence of

statutory exceptions.

The petitioner has been indicted and tried for fraud at the Haenam Branch of the Gwangju District Court. The petitioner then argued that the Instant Provisions granting the prosecutor-prepared suspect interrogation transcript the admissibility as evidence even if the suspect-turned-defendant denies its contents infringe on thepetitioner's right to trial and equality and therefore are unconstitutional,and requested constitutional review, and the court accepted the request and referred for constitutional review.

Summary of the Decision

The Constitutional Court found the Instant Provisions constitutional with a decision of four Justices out of eight for the

following reasons:

1. The Court's Decision

A. The main paragraph of the Instant Provisions admits into evidence a suspect interrogation transcript prepared by a prosecutor despite its nature as hearsay under the specially credible circumstances set forth in the provision of the Instant Provisions, while denying the admissibility of the suspect interrogation transcript prepared by other investigation agencies. Such grant of admissibility takes into account the status of a prosecutor under procedural law and is geared toward the purpose of criminal procedural law - that is, the discovery of substantive truth through due process of law and an expeditious trial. Its purpose is legitimate and content reasonable. Furthermore, according to the new judgment of the Supreme Court, the prosecutor-prepared transcript is admitted into evidence and its genuineness acknowledged only when the person who has given the original statement establishes not just formal authenticity but also substantive authenticity by testifying on the day of or in preparation of a trial. Then, the main paragraph of the Instant Provisions do not interfere unduly with the defendant's right to defense or infringe on the right to receive a fair trial in violation of

the principle of equality.

B. The proviso of the Instant Provisions acknowledging authenticity of a prosecutor-prepared suspect interrogation transcript even when the defendant (formerly the suspect) denies its contents, and admitting into evidence of that transcript in presence of specially credible circumstances also has the requisite legitimacy of its purpose. Also, it grants admissibility only when the court has made a finding of specially credible circumstances, and therefore the scope of its application is limited to the extent necessary for accomplishment of the purpose. Therefore, its content is reasonable and legitimate. In the end, the Instant Provisions do not infringe on the defendant's right to receive a fair trial exceeding the limits of the legislature's formative power and therefore are not

unconstitutional.

2. Concurring Opinion of Two Justices

The courts' current practice of effectively presuming specially credible circumstances arises out of the courts' trial practices, not out of the uncertainty of the proviso of the Instant Provisions. However, the clarity of the Instant Provisions has been in controversy. These days, the principle of direct examination and the public-trial-oriented adjudication are being emphasized. There is a need for a legislative measure stating more clearly and concretely the prerequisites for granting admissibility to

prosecutor-prepared suspect interrogation transcripts.

3. Dissenting Opinion of Four Justices

A. The Instant Provisions grant admissibility to the prosecutor-prepared suspect interrogation transcript and thereby carve out an exception to the hearsay rule, which will become adverse to the defendant and therefore demand higher degree of clarity. The current practice of criminal procedure as a matter of fact presumes the existence of the specially credible circumstances, the element required by the proviso of the Instant Provisions, and puts the burden of disproving it upon the defendant. Such result arises out of the uncertainty of the meaning of the proviso of the Instant Provisions, and the lack of clarity of the legal jargon "specially credible circumstances" does not satisfy the mandate of

the rule of clarity required by the Constitution.

B. The legislature, through the Instant Provisions, tries to grant the prosecutor-prepared suspect interrogation transcript superior effect to that of the police-prepared interrogation transcript upon the condition of meeting a heavier requirement - that is, the ambiguous requirement of "specially credible circumstances" set forth in the proviso of the Instant Provisions. The legislature should not stop there. It should have made clear that the procedure of informing the suspect of his or her right to request attorney participation or otherwise satisfying substantively the attorney's participation are the prerequisite to granting admissibility, and should have taken legislative measures of strengthening the procedural transparency of the suspect interrogation process conducted by prosecutors. The legislature's drafting of the proviso of the Instant Provisions constitutes dereliction of its legislative-formative duty in failing to provide clearly the prerequisite for granting admissibility of the prosecutor-prepared

suspect interrogation transcript.

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Parties

Requesting Court

Haenam Branch of Gwangju District Court

Petitioner

Moon ○-ok

Original Case

Haenam Branch of Gwangju District Court 2001Go-Dan416, Fraud

Holding

Neither the part of Article 312(1) of the Criminal Procedure Act (amended by Act No. 705, on September 1, 1961) stating, "A transcript which contains a statement of a suspect . . . or of any other person, prepared by a public prosecutor," nor its proviso is

unconstitutional.

Reasoning

1. Overview of the Case and the Subject Matter ofReview

A. Overview of the Case

Petitioner was charged with fraud at Haenam Branch of Gwangju District Court, 2001Go-Dan416. While the trial was pending, the petitioner made a request for a constitutional review of Article 312 (1) of the Criminal Procedure Act (amended by Act No. 705, on September 1, 1961, hereinafter referred to as the "Act") that allows the admissibility of a transcript of the interrogation of a suspect prepared by a public prosecutor where that suspect has later become a defendant (hereinafter referred to as the "Suspect Interrogation Transcript") even if the defendant denies its contents in court. The court accepted the request and thus requested this

constitutional review.

B. Subject Matter of Review and Relevant Provisions

The subject matter of review is the constitutionality of the part of Article 312(1) of the Act (amended by Act No. 705, on September 1, 1961) stating, "A transcript which contains a statement of a suspect or of any other person, prepared by a public prosecutor" and its proviso (hereinafter referred to as the "instant provision"). Its

contents and relevant provisions are as follows:

(1) Subject Matter of Review

Article 312 (Transcript Prepared by Public Prosecutor or Judicial Police Officer)

(1) A transcript which contains a statement of a suspect or of any other person, prepared by a public prosecutor, or a transcript containing the result of inspection of evidence, prepared by a public prosecutor or judicial police officer, may be introduced into evidence, if the genuineness, thereof, is established by the person making the original statement at a preparatory hearing or during the public trial: provided that a transcript containing the statement of the defendant who has been a suspect may be introduced into evidence only where the statement was made under specially credible circumstances, regardless of the statement made at a preparatory

hearing or during a public trial by the defendant.

(2) Relevant Provisions

Article 312 (Transcript Prepared by Public Prosecutor or Judicial Police Officer)

(2) A transcript containing interrogation of a suspect prepared by investigation authorities other than a public prosecutor may be used as evidence, only in case where the defendant who has been a suspect or the defense counsel verifies the

contents of the transcript

at a preparatory hearing or during a public trial.

Article 244 (Preparation of Transcript concerning Interrogation of Suspect)

(1) The statement of a suspect shall be written in the transcript.

(2) The transcript of the preceding paragraph shall be shown to the suspect for inspection or read to him, and he shall be asked whether or not there are miswriting in the transcript. In case there is a demand for amendment, deletion, or change by the suspect, the

statement of the change shall be recorded therein.

(3) If the suspect indicates that there are no miswriting in the transcript, the transcript shall be signed or sealed with the signature of the suspect after placing a seal across the leaf and the

contiguous leaf.

Article 308 (Principle of Free Evaluation of Evidence)

The probative value of evidence shall be left to the discretion of

judges.

Article 309 (Admissibility of Confession Caused by Duress, etc.)

Confession of a defendant extracted by torture, violence, threat or prolonged arrest or detention, or which is suspected to have been made involuntarily by means of fraud or other methods, shall not be

admissible.

Article 310 (Admissibility of Confession)

When the confession of a defendant is the only evidence against

him, the confession shall not be admissible.

Article 310-2 (Hearsay Evidence and Limitation of Admissibility)

Except as provided for in Articles 311 through 316, any document, which contains a statement in place of the statement made at a preparatory hearing or during public trial, or any statement the import of which is another person's statement made outside a preparatory hearing or at the time other than the public

trial date, shall not be admissible.

Article 317 (Voluntary Statements)

(1) Oral statements given by a criminal defendant or a person other than the defendant shall not be admitted as evidence unless

the statements are made voluntarily.

(2) A document that contains oral statement referred to in the preceding paragraph shall not be admissible unless it is proved that

the statement was made voluntarily.

(3) In case the part of the transcript that refers to evidence by inspection is taken from the oral statement given by the defendant or a person other than the defendant, only the part thereof shall be

governed by the preceding two paragraphs.

2. Opinion of the Requesting Court and the Related Parties

A. Reasons for Requesting Constitutional Review

The instant provision is against the principle of public-trial-centered adjudication which is a part of the right to a fair trial by judges, because it puts more creditability on the Suspect Interrogation Transcript than a statement made in court

by a defendant who is presumed to be innocent. Moreover, it is in violation of the presumption of innocence and due process, as it amounts to institutionally guaranteeing the likelihood that a prosecutor may distort a trial, which should be conducted by a

neutral adjudicating body, a judge.

According to the instant provision, under certain circumstances, the Suspect Interrogation Transcript is admissible even if the defendant denies its contents. It is an infringement on the right to equality since it disturbs the framework of a fair trial by unfairly favoring a prosecutor, a party in a criminal suit with the burden of proving guilt, by reducing his responsibility to establish the burden

and thus putting the defendant at a disadvantage.

The easy admissibility of the Suspect Interrogation Transcript, acknowledged by the instant provision, induces prosecutors conducting investigations and public prosecution to particularly focus on obtaining confessions at the investigation stage, and it is highly probable that, in the actual process, they violate the Constitution's ban against torture, the right to remain silent and the

defendant's right to life and bodily freedom.

B. Opinion of the Minister of Justice, the Prosecutor

General, the Chief Public Prosecutor of Kwang-ju

District Public Prosecutor's Office, Haenam Branch

The instant provision acknowledges the admissibility of the Suspect Interrogation Transcript notwithstanding that it is hearsay

evidence. This is justified on the following grounds:

Firstly, its purpose is legitimate because it is for substantive fact-finding and a speedy trial, which the Criminal Procedure Act aims at. Secondly, it is reasonable in that the possibility of human rights infringement such as torture occurring in the suspect interrogation process by a prosecutor is comparatively low, since prosecutors are appointed among the people with the same qualifications as judges and serve as representatives of the public interest. Thirdly, in addition to the prerequisites for admitting into evidence the Suspect Interrogation Transcript stipulated by the instant provision - the authenticity of a transcript and the existence of specially credible circumstances, there is a limit based on the Constitution's principle guaranteeing due process and hence the defendant may adopt various defenses to prevent the Suspect Interrogation Transcript from being admitted into evidence, such as denying its authenticity, contesting the voluntariness of his or her statement, or asserting that notice of the right to remain silent was not given or there was an unlawful restriction on right to communication and consultation with an attorney. Lastly, even if the probative value of evidence is recognized, the question of credibility of that evidence is left to the free discretion of a judge, and the defendant may freely impeach its credibility. Therefore, it cannot be said that the instant provision infringes on the right to equality and the right to a fair trial, or violate due process or the

presumption of innocence.

Cruelties during prosecutorial investigations cannot be attributed to the instant provision. They are only an exceptional phenomenon. It cannot be said with certainty that cruelties take place because of the instant provision and will disappear in absence of the same. In short, there is no direct connection between the instant provision and the Constitution's ban against torture, the right to remain silent, the defendant's right to life, and the right to bodily freedom,and accordingly, the instant provision does notinfringe on such

rights.

3. Review on Merits

A. The Legislative History and Purpose of Article312 of the Act

(1) Legislative History

A question concerning probative value of a transcript prepared by the investigative authority was one of the important issues in the enactment process of the Criminal Procedure Act after the Liberation. Originally, Article 312 in the draft of the Criminal Procedure Act stated "A transcript which contains a statement of a suspect..., prepared by a public prosecutor, investigator or judicial police officer... may be introduced into evidence, if the genuineness, thereof, is established by the statement of the defendant at a preparatory hearing or during the public trial." It extensively acknowledged the probative value of a suspect interrogation transcript prepared by the investigative authority and did not distinguish the probative value of a suspect interrogation transcript prepared by a judicial police officer from that of a suspect

interrogation transcript prepared by a public prosecutor.

However, when the draft was referred to the Legislation and Judiciary Committee, the wording of the provision was changed, and the following proviso was added: "Provided, that a transcript containing interrogation of a suspect prepared by investigation authorities other than a public prosecutor may be used as evidence, only in case where the defendant who has been a suspect, or the defense counsel at a preparatory hearing or during public trial verifies the contents of the transcript." The proviso limited the probative value of a suspect interrogation transcript prepared by a judicial police officer. In this manner, Article 312 of the Criminal Procedure Act enacted by Act No. 341 on September 23, 1954 distinguished the probative value of a transcript prepared by a judicial police officer from that of a transcript prepared by a public prosecutor in the form of a main paragraph and a proviso.

Then in the Amendment under Act No. 705 on September 1, 1961, the main paragraph and the proviso were separated as Paragraph 1 and Paragraph 2, and a proviso, "provided, that a transcript containing the statement of the defendant who has been a suspect may be introduced into evidence only where the statement was made under specially credible circumstances, regardless of the statement made at a preparatory hearing or during a public trial by the defendant," was added, which has remained to this day.

(2) Legislative Purpose

Guaranteeing human rights and insuring efficiency of the investigative process are ideals always in conflict, and we have to choose a point of balance between the two. The point our lawmaker chose was to restrict admissibility of the result of investigation as evidence at the public trial later on. In other words, our lawmakers believed that coercive investigation including torture can be prevented by limiting the admissibility of a transcript prepared by the investigative authority, while also considering another ideal for criminal trials so called litigation economy and elimination of unjustifiable expenses and delay by distinguishing the admissibility of a transcript prepared by a public prosecutor from that of a transcriptprepared by other investigative authorities. In doing so, our lawmakertried to reach a point of balance between the guarantee of individual's human rights and litigation economy.

B. The Significance of the Instant Provision in

CriminalEvidence

Article 310-2 of the Act states the following under the heading "Hearsay Evidence and Limitation of Probative Value of Evidence": "Except as provided for in Articles 311 through 316, any document which contains a statement in place of the statement made at a preparatory hearing or during public trial, or any statement the import of which is another person's statement made outside preparatory hearing or at the time other than the public trial date, shall not be admissible." The provision denies the probative value of hearsay evidence, in principle, but leaves room for exceptions. For example, Article 311 of the Act admits into evidence a transcript prepared during a proceeding conducted by courts or judges without any particular limitation, and the instant provision admits into evidence the Suspect Interrogation Transcript under

more heightened conditions than those of Article 311.

That is, according to the instant provision, an interrogation transcript of a suspect who did not become a defendant prepared by a public prosecutor, non-suspect witness testimony transcript or an inspection transcript is admissible as evidence merely if the genuineness, thereof, is established. In comparison, the Suspect Interrogation Transcript is admissible as evidence regardless of the statement made in court by the defendant, only when the genuineness, thereof, is established and the statement was made under specially credible circumstances. On the contrary, a suspect interrogation transcript prepared by investigative authorities other than a public prosecutor is admissible as evidence only in case where the genuineness, thereof, is established and the defendant or the defense counsel verifies the contents of the transcript, even if it is of a defendant who has been a suspect (Article 312(2) of the

Act).

C. The Constitutionality of the Instant Provision

(1) The Standard of Constitutional Review

(A) The Constitution guarantees the right to request trial as a constitutional basic right, as it provides in Article 27(1) that "All citizens shall have the right to be tried in conformity with law by judges qualified under the Constitution and law" and in Article 27(3) that "All citizens shall have the right to a speedy trial. The accused shall have the right to a speedy public trial in the absence of justifiable reasons to the contrary." Our court has consistently elucidated that the right to request trial under Article 27(1) of the Constitution is a comprehensive right that includes not only access to judicial procedure but also the right to a fair trial, namely all the basic rights involved in the judicial procedure (refer to Constitutional Court, 94Hun-Ba1, December 26, 1996, 8-2 KCCR 808, 820; 94Hun-Ma60, November 27, 1997, 9-2 KCCR 675, 693-696; 94Hun-Ba46, December 24, 1998, 10-2 KCCR 842, 850).

Therefore, the standard of constitutional review of the instant provision stipulating evidence rules of criminal procedure should be whether the right to request trial, under Article 27(1) of the Constitution, particularly, the right to a fair trial, is infringed. Besides, other standards of constitutional review, asserted by the requesting court, such as the presumption of innocence, the right not to be tortured, the right to remain silent and the defendant's right to life and bodily freedom should also be reviewed. Although the instant provision itself does not have any intention or contents restricting such constitutional rights. That is because they are in

functionally mutual relation with the right to request trial, as they can be taken into consideration in establishing the 'protected realm

of the right to request trial.'

(B) Since procedural basic rights such as the right to request trial have the nature of institutional guarantee, the legislative-formative power granted in this area is relatively broad, compared to the case of other basic rights such as liberty-type basic rights. Therefore, the reasonableness principle or the arbitrariness principle is applied as the standard of constitutional review of related legislation (refer to Constitutional Court, 97Hun-Ba51, September 30, 1998, 10-2 KCCR 541, 550; 94Hun-Ba46,

December 24, 1998,10-2 KCCR 842, 850).

In this case, the instant provisions is an exception to the "hearsay rule," that excludes hearsay evidence, and the Constitution does not expressly mandate the hearsay rule to be adopted in criminal procedure. The question of whether to adopt the hearsay rule to materialize the defendant's right to a fair trial and whether to apply the exact same hearsay rule to various kinds of hearsay evidence or to apply different hearsay rules according to the kinds of hearsay evidence is what the lawmaker should decide by comprehensively taking into account the general circumstances such as the legal environment of our society, investigation practices, the level of legal awareness of investigative authorities and the people, the reality of human rights infringement by the investigative

authorities, and the structure of our criminal trial.

(2) The Constitutionality of the Instant Provision

The prerequisites for admitting into evidence the Suspect Interrogation Transcript, stipulated by the instant provision, are the "authentication"(the main paragraph) and "existence of specially

credible circumstances"(the proviso).

(A) First of all, we review the main paragraph of the instantprovision.

1) According to the main paragraph of the instant provision, a Suspect Interrogation Transcript may be introduced into evidence under certain conditions stipulated by the proviso of the same provision if its genuineness is established by the person making the original statement at a preparatory hearing or during the public trial. Authentication here means 'formal authentication' such as inter-page seals, signature, seal affixation, etc., and "substantive authentication" which means that the contents of the Transcript match the testimonies of the witness (Supreme Court, 95Do1761,

October 13, 1995).

2) Discovery of substantive truth through due process and a speedy trial are the ideals of the Criminal Procedure Act, and in many cases, the possibility of discovering the substantive truth in the criminal procedure would be lost if a Suspect Interrogation Transcript prepared by a public prosecutor or other investigative authorities becomes entirely inadmissible as evidence. Since a defendant can easily deny his previous confession if he or she senses that the possibility of a guilty judgment increases in the course of the criminal procedure, the court has to declare a defendant innocent for lack of evidence even if the defendant is in fact guilty, as the court cannot demand a new statement due to the right to remain silent (the latter part of Article 12 (2) of the

Constitution).

Public prosecutors, judicial police officers and special judicial police officials take charge of the investigation of crimes (Article 195-197 of the Criminal Procedure Act).

Yet, the public prosecution is a state agency with immense power, which directs and instructs judicial police officers and special judicial police officials, decides exclusively whether to bring a prosecution upon the result of the investigation and demands of the court a just application of the lawas a party against a defendant in a public trial. The instant provisionprovides that the Suspect Interrogation Transcript, different from a suspect interrogation transcript prepared by other investigative authorities, is admissible into evidence if it has been made underspecially credible circumstances according to the proviso, notwithstandingit being hearsay evidence. The legitimacy of its purpose and reasonableness of its contents are well recognized because it takes into account the status of a public prosecutor and aims at the discovery of the substantive truth through due process and a speedy trial, the ideals ofthe Criminal Procedure Act.

Moreover, the Supreme Court, which hitherto presumed substantive authenticity if formal authenticity is acknowledged (the Supreme Court, 84Do748, June 26, 1984; 2000Do2617, July 28, 2000 etc.), changed its former standpoint through a recent unanimous decision after en banc review (the Supreme Court 2002Do537, December 16, 2004) that the Suspect Interrogation Transcript can be acknowledged as authentic and used as evidence only when its formal authenticity as well as the substantive authenticity is acknowledged by the person who made the original statement at a preparatory hearing or during the public trial. Under the new opinion of the Supreme Court, if the defendant claims during trial that the Suspect Interrogation Transcript has been recorded differently from his or her statement, in other words, if the defendant denies the substantive authenticity of the transcript, it loses its admissibility as evidence, and thus, cannot be used as

evidence of guilt.

3) In short, in addition to the reasonableness of the main paragraph of the instant provision, according to the new opinion of the Supreme Court, this provision does not favor the prosecutor, a party in a criminal suit, who has the burden of proving guilt, by reducing his responsibility to establish the burden. There are also no more concerns of the prosecutor's excessive investigation to obtain a confession from the suspect or the court's setting priority on the statement made before the prosecutor than the one made at

trial.

Therefore, the defendant's right of defense is not unjustly hindered nor is the right to equality violated resulting in the infringement of the right to fair trial by judges due to the main paragraph of the instant provision. Also, there is no possibility of violations of the presumption of innocence, right to be free from torture, right to remain silent, and right to life and bodily freedom

as the requesting court had asserted.

(B) Next, we review the proviso of the instant provision, the matter of admitting the Suspect Interrogation Transcript as evidence on the condition that specially credible circumstances exist.

1) According to the proviso of the instant provision, even in a case where the defendant admits the Suspect Interrogation Transcript to be recorded as he or she had stated but denies the veracity of the contents of the transcript, in other words even when the defendant admits the formal authenticity but denies the substantive authenticity, the Suspect Interrogation Transcript is admissible. That is, when the statement was made before the

prosecutor under specially credible circumstances.

2) Taking the matter into consideration, if the principles of trial-based adjudication and direct trial are strictly to be carried out without exception, it is logical to, as a rule, deny the admissibility of the Suspect Interrogation Transcript,

prepared by the investigation authorities when the defendant denies the contents of the transcript regardless of whether the transcript was prepared by a public prosecutor or a judicial police officer. However, as trial-based adjudication and direct trial are rules of criminal procedure, rather than those of the constitution, they can be limited

according to each country's circumstances.

According to each country's legislative examples, Article 322 (Defendant's Written Statement or Statement Transcript) of the Japanese Criminal Procedure Act provides, "Written statement prepared by the defendant or a transcript in which the statement of the defendant is recorded that has the defendant's signature or seal affixation, can be used as evidence only when the statement contains approval of a fact disadvantageous to the defendant or has been made under specially credible circumstances. However, the document that contains approval of a fact disadvantageous to the defendant cannot be used as evidence, if there is doubt as to its voluntariness, even if it is not a confession, by applying Article 319 (Admissibility as Evidence Probative Value of Confession) mutatis mutandis." Thus, if the suspect interrogation transcript, not only when prepared by the public prosecutor, but also when prepared by the judicial police officer, has the defendant's 'signature or seal affixation,' which corresponds to Korea's formal authenticity, the transcript's admissibility as evidence is acknowledged unless the

voluntariness is denied.

On the other hand, in Germany, according to Article 250, Article 254 (1), etc. of the German Criminal Procedure Act, only the suspect interrogation transcript prepared by the judge is admissible as evidence. The transcript prepared by a judicial police officer or a public prosecutor alone cannot be admitted as direct evidence to prove the defendant's guilt. However, in the practices of the criminal trial, although there is no expressed provision, when the defendant makes contradictory statements from the former statements or when the defendant is unable to remember his or her statements that he or she had made in front of the police officer or prosecutor in the investigation procedure, the presiding judge, showing the defendant the suspect interrogation transcript, in which the defendant's statement at the investigation agencies are recorded, asks, "Did you not remark statements of these contents?" In this way, the presiding judge points out the contradiction or helps the defendant to remember. This is a customary practice called 'presentation'(Vorhalt), which is also acknowledged by the Federal Court of Justice (BGH). To such 'presentation' if the defendant acknowledges the former statements, those statements can be used as evidence in trial. If the defendant refuses to answer or dispute the 'presentation' the person who interrogated the suspect (e.g. police officer) can be called as witness, and the veracity of the statement of the witness becomes subject to the judge's discretion.

Meanwhile, in the U.S., as the investigation authorities do not prepare suspect interrogation transcripts and as the inquiry into facts ends at the arraignment procedure, if the suspect confesses to the investigation authorities, the admissibility of evidence of the suspect's confession made to the investigation authorities is rarely a problem. Only when the suspect, who had produced a written confession, denies the confession at trial, the person who heard the confession or interrogated the then suspect (usually a police officer) comes to court as a witness to testify and the testimony is used as

evidence.

As can be seen from the above, the question of when and under what circumstances the suspect interrogation transcript, prepared by the investigation authorities, can be admissible as evidence is a

matter of each country's legislation.

3) The purpose of the proviso of the instant provision, the discovery of the substantive truth through due process of law and a speedy trial, is justified. Also, as the proviso grants admissibility as evidence to the transcript only after having the court examine the existence of specially credible circumstances, restricting the application to the limits necessary, the proviso can be said to be

reasonable and just in its contents as well.

Moreover, for the Suspect Interrogation Transcript to ultimately acquire admissibility as evidence, due process of law guaranteed by the Constitution should also be observed, along with the formal and substantive authenticities required by the main paragraph of the

instant provision.

If we take a more concrete look into this matter, if the defendant's statement such as confession was made against his will and extracted through means such as torture and violence, thus lacking voluntariness (Constitution Article 12 Paragraph 7, Criminal Procedure Act Articles 309 and 317)1), if the criminal suspect's statement had been made without a prior notification of the right to remain silent (Constitution Article 12, Criminal Procedure Act Articles 309 and 317) founded on the right against self-incrimination (refer to Supreme Court, 92Do682, June 23, 1992), and if the suspect was interrogated under unlawful limitations on his or her right to meet or communicate with an attorney or the attorney's right to participate in the suspect interrogation (Supreme Court, 2003Mo402, November 11, 2003; refer to Constitutional Court, 2000Hun-Ma138, September 23, 2004, 16-2 KCCR 543), the Suspect Interrogation

Transcript is denied admissibility in principle.

Therefore, the defendant, apart from the transcript's formal and substantive authenticity, can choose from such various grounds for

defense to deny the admissibility of the transcript.

4) Also, under the Korean system, in which professional judges administer trials, the need to exclude hearsay evidence is weaker than under other systems where citizens participate as jurors or judges. As the statement of the defendant made at trial is acknowledged as evidence, even when it differs from the one formerly given to investigation authorities, and as the statement before the public prosecutor is also admitted as evidence when verified as stated under specially credible circumstances, the court can compare the two statements, one made before the public prosecutor and the other made at trial and judge which statement is

more credible.

Admissibility of evidence only means that evidence is qualified to be used as material for strict verification. It is strictly distinguished from the concept of probative value, which is the substantive value of evidence. Even if evidence is admissible, its probative value, in other words whether it is credible, is left to the discretion of judges (refer to Act Article 308). Therefore, as the defendant is free to use various methods to attack the probative value of evidence, the admissibility as evidence of certain evidence and the verification of a fact that needs support of evidence or the acknowledgement of an existence of crime through that evidence

does not have an inevitable link.

Thus, when the defendant, who has the right to deny the admissibility of the Suspect Interrogation Transcript by denying the authenticity of the transcript at trial,

does not exercise that right and acknowledges the authenticity of the transcript but denies its contents, the prosecutor can assert the existence of specially credible circumstances along with the basis for such assertion for the transcript to acquire admissibility as evidence. As for the defendant, he or she can assert the nonexistence of specially credible circumstances. This matter is in the realm of the court, and the court decides after considering the overall situation in which the

statement was made.

5) To sum up, the defendant's right to defense is not unjustly limited, nor is he placed in an obviously disadvantaged position compared to the other party, the public prosecutor, just because the proviso of the instant provision provides that the admissibility as evidence of the Suspect Interrogation Transcript can be acknowledged regardless of the defendant's statement at the trial when the Suspect Interrogation Transcript, prepared by the public prosecutor, satisfies the formal and substantive authenticity requirements under the instant provision's main paragraph, and when it has been prepared under specially credible circumstances.

Therefore, although the proviso of the instant provision admits the Suspect Interrogation Transcript as evidence even when the defendant, after acknowledging the authenticity of the transcript, denies only its contents on the condition that it had been framed under specially credible circumstances, the legislature cannot be blamed for infringing on the defendant's rights including the right

to fair trial by exceeding the limits of legislation.

(3) Sub-conclusion

As can be seen from the above, the defendant's right to a fair trial or other rights such as the presumption of innocence, the right to be free from torture, the right to remain silent, and the right to life and bodily freedom cannot be said to be infringed by the instant

provision.

4. Conclusion

The instant provision is not unconstitutional and the court declares so. On this decision, there are concurring opinions of Justices Kim Kyung-il and Jeon Hyo-sook in paragraph 5 and dissenting opinions of Justices Yun Young-chul, Kwon Seong, Kim

Hyo-jong, and Lee Sang-kyung in paragraph 6.

5.Concurring Opinion of Two Justices

We agree with the opinions and the points of Justices Song In-jun and Choo Sun-hoe that the instant provision is not unconstitutional. We would like to consider the matter of whether this provision's ambiguity has caused the customary practice of the court, which virtually presumes the existence of specially credible circumstances, as it was asserted in the request for constitutional

review.

A reasonable interpretation of the proviso of the instant provision leads to the conclusion that the prosecutor should concretely assert and prove the existence of the specially credible circumstances, as it is a requirement to acknowledging admissibility as evidence. Nevertheless, in a criminal trial the court hitherto presumed substantive authenticity and even the specially credible circumstances when the formal authenticity was acknowledged, thus, placing the burden of proving the nonexistence

of the specially credible circumstances on the defendant. The virtual presumption here, an act of the court to confirm ultimate facts from various evidentiary facts by applying common judicial experiences belongs to the realm of the court's judgment. Although the burden of proving the existence of specially credible circumstances actually seems to be reversed, it is not because of the ambiguity of the proviso of the instant provision. If such practice of the court became the customary interpretation of the instant provision's proviso, it would have been necessary to consider its

unconstitutionality.

However, since the Supreme Court changed its former opinion by abolishing the customary presumption, not acknowledging the admissibility as evidence of the Suspect Interrogation Transcript if the defendant denies the substantive authenticity of the transcript prepared by the prosecutor (the Supreme Court, 2002Do537, December 12, 2004), the grounds of the former opinion, which acknowledged not only the substantive authenticity but even the specially credible circumstances once the formal authenticity is acknowledged, has become weakly grounded. Also, there is no data that the court still interprets and uses the proviso of the instant provision to presume specially credible circumstances in criminal trial practice even after the Supreme Court's change of opinion. Therefore, it is not proper to discuss the unconstitutionality based

on the former practices.

Nonetheless, considering that the dispute on the clarity of the instant provision still continues and that the principle of direct and public trial are emphasized in today's reality, legislation that provides more concrete and clear requirements in acknowledging admissibility as evidence of the Suspect Interrogation Transcript

prepared by the prosecutor is needed.

6.Dissenting Opinion of Four Justices

Our opinion differs from the Court's opinion that pronounced the proviso of the Criminal Procedure Act Article 312 (1) constitutional;

thus, we iterate our dissenting opinion as follows.

A. Significance of Former Decision of the Constitutional

Court and the Ruling of the Supreme Court

As noted in the court's opinion, the Constitutional Court, in its decision of 93Hun-Ba45 on June 29, 1995, judged the proviso of Article 312 (1) of the Criminal Procedure Act constitutional and the Supreme Court changed its former opinion by ruling that the Suspect Interrogation Transcript prepared by the prosecutor can only be used as evidence when the substantive authenticity is acknowledged by the statement of the person who made the original statement at a preparatory hearing or during the public trial (the

Supreme Court 2002Do537, December 16, 2004).

However, the Constitutional Court's decision above mainly raised question only on the fact that Article 312 (1) of the Criminal Procedure Act (hereinafter "Article 312 (1)") acknowledges the admissibility as evidence of the Suspect Interrogation Transcript prepared by the prosecutor more easily than the one prepared by the judicial police officer by acknowledging the admissibility as evidence the transcript prepared by the prosecutor even when the defendant denies the contents. Also, the Supreme Court ruling above does not rule that "the statement was made under specially credible circumstances." (hereinafter "specially credible circumstances"), a

condition that the proviso of Article 312 (1) requires among other requirements to grant admissibility as evidence to the Suspect Interrogation Transcript prepared by the prosecutor. Thus, the requirement of specially credible circumstances is still open for

constitutional evaluation.

B. Matters in Dispute

The court decision's main basis for judging the proviso of Article 312 (1) constitutional was that the proviso additionally required specially credible circumstances before it acknowledged the admissibility as evidence of the Suspect Interrogation Transcript prepared by the prosecutor (the so-called theory of heightened requirement). However, in the actual practice of a criminal trial, the Court has treated the existence of specially credible circumstances as virtually presumed, leaving to the defendant the burden to assert and prove the exceptional lack of such circumstance, and, as a result, has reduced the burden of proof of the prosecutor. The Supreme Court also virtually presumed the existence of specially credible circumstances, noting "unless there is a reason to believe that the specially credible circumstances do not exist, [the transcript] is admissible as evidence" (refer to Supreme Court 94Do129, November 4, 1994 (Korean Supreme Court Reporter (KSCR) 1994, page 3302); 96Do865, June 14, 1996 (KSCR 1996 Vol.Ⅱ, page 2286); 97Do2084, November 25, 1997 (KSCR 1998 Vol.Ⅰ, page 175); 2000Do2617, July 28, 2000 (KSCR 2000 Vol.Ⅱ, page 1976)

etc.)

Such legal reality shows that Article 312 (1) is being interpreted and managed differently from the original intention of the legislature and even from the expectation of the Constitutional Court. Thus, we need to discuss whether Article 312 (1) violates the principle of

clarity.

C. Possibility of a Violation of the Principle of Clarity

The principle of clarity, a mandate of the principle of government by the rule of law, requires that the legal norms, including law, should be prescribed with words clear and precise enough for the individual affected by the norm to be able to understand the requirements of the norm. Thus, the degree of clarity, required by the principle of clarity, is not the same in every law and may differ according to the characteristic of each law or provision, each element's distinctiveness, and the background or the circumstances in which the law was legislated. Generally, the principle of clarity is more strictly required in a case when the provision imposes a duty compared to when that provision provides a benefit. Criminal laws, governed by the principle of nulla poena sine lege, require a heightened degree of clarity with stricter criteria, while general laws do not require such a heightened degree of clarity and are sufficient when a relaxed standard is met (refer to Constitutional Court, 98Hun-Ba37, February 24, 2000, KCCR 12-1, 169, 179). Thus, in case of the criminal law or other laws where the interests of citizens sharply conflict, unclear legal terms are prohibited. When the use of an ambiguous term is unavoidable, various methods, such as defining the term, using a limiting modifier, establishing a clause that limits the application of the law, etc., should be employed to prevent the possibility of the law being interpreted arbitrarily (refer to Constitutional Court 89Hun-Ka104,

February 25, 1992, KCCR 4, 64, 78).

Article 312 (1) provides for the requirement of granting the admissibility as evidence to the Suspect Interrogation Transcript in a criminal trial - an exception to

the principle of exclusion of hearsay evidence. The provision can be disadvantageous to the defendant; thus, the principle of clarity is required to a higher

degree.

The fact that in the practice of criminal trial the specially credible circumstances, required by the proviso of Article 312 (1), are virtually presumed and managed in a way that the defendant bears the burden of proof, after all can only be seen to be attributed to the ambiguity of the meaning of the proviso of Article 312 (1). Of course there can be an opinion that such management, in practice, is only a matter of the court's applying common judicial experiences and judging of evidence in the process of acknowledging facts about the specially credible circumstances and cannot be seen as a matter concerning the unconstitutionality of Article 312 (1). However, such virtual presumption of specially credible circumstances shifts the burden of proof to the defendant based on the one-sided trust for the investigation authorities without the empirical examination or reflective consideration of investigational realities. It is doubtful that such practice can be accepted as the proper management of trials under our constitutional order governed by Constitution Article 27 Paragraph 4 clearly iterating presumption of innocence of a defendant. In light of the fact that such management of the criminal trial system, while its influence on the structure of the criminal trial and the defendant's right to defense is grave, has been conducted not only in some fact-finding courts but also has been justified by the Supreme Court, such practice can be seen after all as resulting from the ambiguity of the proviso of Article 312 (1) in prescribing the responsibility or burden of proving the prerequisite before the admissibility of the evidence specially credible. For example, if the text of the proviso of Article 312 (1), "only where the statement was made under specially credible circumstances," had been prescribed as "only when the statement was proved to be made under specially credible circumstances," the current practice of criminal trial - presuming the specially credible circumstance and shifting the burden to the defendant - would not have taken root.

Also, the text of Article 312 (1) requiring specially credible circumstances" is also susceptible to two or more equally reasonable interpretations. It is difficult to distinguish the credibility of a statement that the suspect gave in front of the prosecutor from the probative value of that statement. It is also equally difficult to discern from the text the relationship of that requirement to the "voluntariness" requirement, prescribed in Articles 309 and 317. Adding "specially", a vague modifier, does not eliminate that ambiguity. In fact, opinions vary among scholars on how they interpret specially credible circumstances: (i) one opinion requires merely that the defendant sign, seal, and put inter-page seals, all after reading the Suspect Interrogation Transcript and other checking procedures, along with the transcript being recorded as the defendant stated; (ii) another requires not only the authenticity of the transcript, but also that there should be no possibility of falseness with respect to the fact that the suspect stated the recorded words, and further that the term "specially credible circumstances" should be interpreted as having the same or a similar meaning as the existence of concrete and exterior circumstances that can guarantee the credibility or the voluntariness of the statement (there is also a similar opinion that does not require an exterior circumstance guaranteeing 'voluntariness' but one guaranteeing credibility); and (iii) yet another requires, not the existence of a circumstance to guarantee credibility, but one that can guarantee voluntariness; and so forth. Such varying opinions indicate the existence of confusion in interpreting the meaning of specially credible circumstances. As can be seen from the above, it is difficult to think that the legal text, "specially credible circumstances" - prescribed by the proviso of Article 312 (1) as the prerequisite to admissibility of a statement as evidence - possessing such ambiguity, fulfills the principle of clarity, aconstitutional

mandate.

Also, as the regulation regarding specially credible circumstances affects the admissibility of the Suspect Interrogation Transcript, the result of the defendant's being interrogated in front of the prosecutor, it is closely related to the attorney's participation in the prosecutor's suspect interrogation. The Constitutional Court in its decision (2000Hun-ma138, September 23, 2004) ruled in the opinion that as the suspect's right to request the participation of an attorney is a crucial element of the right to assistance of counsel, it is basic and self-evident that investigation authorities cannot reject the request for the participation of an attorney and that such a rule can be directly applied even without concrete legislation. Thus, the legislature has the obligation to concretely and clearly legislate procedural regulations and legal effects that can actually ensure the right to request the participation of an attorney, which can be directly deduced from the right to receive the assistance of counsel. Thus, the legislature, in distinguishing the suspect interrogation transcript prepared by the prosecutor from the one prepared by the judicial police officer and giving superior effect to the former through Article 312 (1), through establishing a heightened requirement, it should not have stopped only after prescribing a vague requirement such as "specially credible circumstances" in the proviso of Article 312 (1). The legislature should have required the substantive guarantee of attorney participation through a notice procedure of the suspect's right to request participation of an attorney, etc., as a prerequisite to admissibility, thereby firmly establishing the admissibility requirement. The legislature should also have considered legislative measures emphasizing the procedural transparency of the suspect interrogation conducted by the prosecutor. As noted above, the legislature ambiguously prescribed the requirement for admitting into evidence the Suspect Interrogation Transcript prepared by the prosecutor and therefore was negligent in fulfilling its law-making obligation in deciding the

contents of the proviso of Article 312 (1).

Therefore, the proviso of Article 312 (1) is an unconstitutional law violating the principle of clarity, required in forming a legal

norm.

D. The Need for a Nonconformity Decision

As seen above, the unconstitutional part is the proviso of Article 312 (1). Thus, if the proviso loses its effect by the court's decision of simple unconstitutionality, it results in elimination of the heightened requirement for admissibility as evidence, placing the defendant, the requesting petitioner, in a more disadvantageous position. Therefore, it is necessary to choose a nonconformity decision, which maintains the effect of the proviso for the time being and urges the legislature for a legislative reform. Also, accomplishing such legislative tasks such as making clear the requirement of admissibility as evidence requires respect for the legislature's formative discretion as it involves legislative reforms such as ending the unjust shifting of the burden of proof to the defendant and substantively guaranteeing attorney participation. A nonconformity decision is required for the proviso of the Article 312

(1) of the instant statutory provision.

E. Conclusion

For the reasons stated above, although the instant statutory provision is unconstitutional because it violates the principle of clarity, it is proper to pronounce a

nonconformity decision that maintains the provision's effect for the time being and urges

legislative reform.

Justice Yun Young-chul (Presiding Justice), Kwon Seong, Kim Hyo-jong, Kim Kyung-il, Song In-jun, Choo Sun-hoe (Assigned Justice), Jeon Hyo-sook and Lee Sang-kyung