Protection of Child Victims of Sexual Violence and Guarantee of the Right to Cross-examination of the Accused through Video trial: Constitutional Court 2021.12.23., 2018Heonba 524 decision

In the case of sexual violence crimes stipulated in the 'Sexual Violence Punishment Act', in the case of a victim under the age of 19 recorded in a video, when the authenticity of the establishment is recognized by a court statement of a trusted person or a person who was a witness during the investigation process. It is related to the special provision that limits the defendant's right to cross-examine the original affidavit by stipulating that evidence can be recognized even in the present case. According to the Constitutional Court, preventing secondary harm to minor victims is an important value that cannot be given up in forming criminal procedures for sexual violence crimes. Even though a harmonious method can be assumed, the provision for judgment excessively restricts the defendant's right of defense by practically excluding the defendant's right to cross-examine the original speaker in the statement of the minor victim included in the video. Balance of legal interests, Violation of the principle of excessive prohibition, such as the minimum of infringement, infringes the right of the accused to receive a fair trial. The current law provides various witness support systems that can prevent and guarantee the defendant's right to cross-examination in consideration of the various secondary damages that can occur to minor victims during the testimony process. In the case of witness interrogation of minor victims of sexual violence through sexual assault, there is no choice but to appear in court again and make a statement, so the effect of reducing secondary damage caused by repeated statements will not be significant. As a way to reduce the secondary damage through direct face-to-face, we intend to review the video trial by means of a video relay as an improvement method. In the case of the witness interrogation system by means of a video relay system, the victim does not have to attend the courtroom or face the accused in person because the victim attends the testimony room outside the court and testifies through the relay device. However, if reference is made to the standards that can limit the defendant's right to face through the Craig Test on the remote witness interrogation procedure in the United States, it is possible to operate witness interrogation using video and other relay devices without infringing direct attention and the defendant's right to face. will be. In other words, if the right to face the accused and the right to cross-examination cannot be fully guaranteed, a significant public interest must exist. In addition, the credibility of the testimony must be secured in such a way that the underage victim can take an oath, cross-examination is possible, and the form of testimony can be confirmed in front of a judge, jury, and the accused.