부산대학교 도서관

In order to save the victim from being traumatized by testifying at trial, and to protect defendant's right of fair trial, the J.Y. Interpretation No. 789 confirms the legitimacy of the Article 17, Subparagraph 1 of the Sexual Assault Crime Prevention Act, but sets up additional evidential requirement for this particular statute. According to this Interpretation, the out-of-court statement made by the sex crime victim before the police could no longer be used as the only or the decisive evidence, if the defendant could not cross examine the victim at trial. While acknowledging the best intention of the Justices of the Constitutional Court, this paper argues that Justices unnecessarily constrain the effect of this Interpretation to the Article 17 of the Sexual Assault Crime Prevention Act. As a result, the loopholes of the hearsay rule in the current Criminal Procedural Code could not be corrected. Prosecutors could easily bypass the requirements set up by the J.Y. Interpretation No. 789, because there is similar, but no additional requirements attached statute available. More importantly, this Interpretation increases the burden of proof for the prosecutor. Only when the prosecutor is able to proffer evidence other than the victim's out-of-court statement as the decisive evidence for the case can the court convict the defendant. Considering victim's statement generally plays a decisive role in sex crime prosecution, this inflexible evidential rule unfairly hinders the prosecution for sex crimes.