As the personal and economic exchanges between countries increase these days, we can see more and more cases where a foreign criminal runs away crossing the border after committing an offense in Korea, or where a Korean national commits an offense or becomes a victim of an offense in another country.
Therefore, in today’s world, we should necessarily cooperate with foreign investigative agencies under the criminal proceedings, and from this very point, this study has started with a critical mind of the issue.
As each country has a different legal system and because of the issue of jurisdiction, it is impossible to comprehensively regulate the investigative procedure with a treaty or an agreement. For this reason, it is difficult for the Korean investigative agency to conduct an investigation overseas, and in most cases, criminal cases are investigated in such manner as by requesting the investigative agency of the foreign government to collect/prepare evidence for the case. However, even if the prosecutor receives the evidence and indicts the suspect, it is hard to expect witnesses to attend and testify at the court because most of the witnesses reside overseas. Therefore, it is inevitable to submit the exhibits and reports collected/prepared by a foreign investigative agency to the court as evidence. What is at issue here is a possibility that such evidence was collected by a foreign investigative agency in a different procedure from that of Korea.
This ultimately leads to the issue of whether the court should recognize the admissibility of such evidence. It goes against the trend of this era of globalization to deny the admissibility of evidence only on the ground that it is different from our criminal proceedings because the method/procedures of evidence collection used by a foreign investigative agency is legitimate under the legal system of that country. Currently, the Korean courts apply the Criminal Procedure Act to such evidence, so it can be a problem in that there is still a likelihood that the admissibility of evidence obtained under the Act on International Judicial Mutual Assistance in Criminal Matters can be denied. Moreover, it can also bring about a controversy in that the prosecutor should prove the “particularly reliable state” pursuant to Article 314 of the Criminal Procedure Act even after going through the judicial mutual assistance procedure for criminal matters.
This study intended to examine the stance taken under the criminal laws of Korea regarding the recognition of admissibility of evidence collected abroad by focusing on the cases and precedents where evidence was collected through international judicial mutual assistance for criminal matters. At the same time, it was also intended to identify the problems in the legal and institutional aspects through comparative legal review and to present solutions in terms of revising the Criminal Procedure Act or enacting a special law or in terms of using various systems under the criminal proceedings that are currently in place in Korea.
First is to use video recording or a remote video system which is to use video recordings as the admissible evidence in the criminal procedure by enacting a special act regarding international criminal investigations, or to introduce a remote investigation/remote trial. Second is to expand the range of the “permissibility of evidence” under the Criminal Procedure Act. Its purpose is to widely recognize the admissibility of evidence collected in foreign countries considering the fact that each of the countries exchanging mutual assistance has different criminal legal systems.
It is predicted that in more and more cases, governments around the world will ask for judicial mutual assistance for criminal matters to each other in the criminal proceedings in the future. Consequently, it seems urgently needed to establish the standards to judge whether the evidence collected by a foreign investigative agency can be admitted or not. This issue requires further in-depth discussions later.