검사의 증거개시의무와 수사기록 열람․등사의 거부에 대한 규제방안

초록

Korean Criminal Procedure Law(KCPL) has newly introduced criminal discovery rules similar to U.S. federal system since 2008.1.1. According to KCPL, the defendant or his attorney has the right to access all documents and matters related to the guilt and sentencing facts in government possession. When the prosecutor denies defendant's request to disclose or limit the scope of discovery, the trial court has authority to order discovery upon defendant's request. And KCPL §266-4 (5) provides that when the prosecutor has failed to comply with court's order to discovery, the prosecutor is forbidden to introduce evidence related to the undisclosed documents or matters. Now we are confronted with an important problem. When the prosecutor denies to disclose any information or matter other than which it will use at trial in spite of court order to discovery, the sanction according to KCPL §266-4 (5) is not sufficient to guarantee defendant's right to discovery. As a result, the defence substantially cannot access any information exculpatory or favorable to his case. This paper aims to review appropriate sanctions or remedies to the discovery violation by prosecutor. The followings are suggested : the trial court has to order immediate disclosure, grant a continuance, and search and seizure warrant may be utilized at further step. Especially where the prosecution violation is serious or the prosecution action reflects a bad faith attempt to gain a tactical advantage, the court should dismiss the case.

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