Reference Witness (참고인)
Overview
A reference witness refers to a third party, who is neither a suspect nor a defendant, investigated by investigative agencies or courts in criminal justice procedures to ascertain the truth of a case. A reference witness is a person not directly involved in the case or not suspected of a crime. In principle, they have a duty to testify about facts they know, but unlike suspects, they are not granted the right to refuse testimony. However, under the privilege against self-incrimination (Article 12, Paragraph 2 of the Constitution), they may refuse to make statements that could lead to their own punishment. The reference witness system is essential for discovering substantive truth in investigations and trials, but it also carries the potential for human rights violations, so legal safeguards are in place.
Main Content
Status and Classification of Reference Witnesses
Reference witnesses are distinguished from suspects and defendants under the Criminal Procedure Act. A suspect is a person subject to investigation on suspicion of a crime, and a defendant is a person against whom a prosecution has been initiated. In contrast, a reference witness is a person who cooperates with the investigation without being suspected of a crime or before any suspicion is revealed. Reference witnesses are broadly divided into voluntary reference witnesses and compulsory reference witnesses. Voluntary reference witnesses appear and testify of their own accord, while compulsory reference witnesses may face compulsory measures such as an order to accompany if they fail to respond to a summons. However, compulsory arrest of a reference witness is generally prohibited; only in exceptional cases, when summoned as a witness by a court, can an arrest warrant be issued.
Procedure for Investigating Reference Witnesses
When investigating a reference witness, investigative agencies (prosecution and police) must first request their attendance, verify their identity before the investigation, and notify them of the grounds for refusing to testify. Investigations of reference witnesses typically take place in offices or investigation rooms, and the right to legal counsel is recognized. However, unlike suspects, the right to assistance of counsel for reference witnesses is limited; a lawyer may participate in the investigation but cannot actively intervene in the process. The principle of voluntary investigation applies to reference witness investigations, making forced or prolonged investigations unlawful. If a reference witness refuses to testify during the investigation, the investigative agency cannot impose disadvantages for this reason. However, if summoned as a witness by a court, failure to appear without justifiable cause may result in a fine or arrest.
Difference Between Reference Witness and Witness
Both reference witnesses and witnesses provide information about a case, but they differ in legal status and procedure. A reference witness is investigated by investigative agencies during the investigation stage, while a witness is examined by a court during the trial stage. A witness testifies after taking an oath in court and is subject to punishment for perjury. A reference witness testifies without taking an oath during the investigation stage, so perjury charges do not apply, but false statements may lead to punishment for false accusation or other offenses. Additionally, a witness has a duty to respond to a court summons; failure to do so without justifiable cause may result in arrest or a fine. In contrast, a reference witness is generally not subject to compulsory measures for failing to respond to an investigative agency's request for attendance.
Rights and Protection of Reference Witnesses
Reference witnesses have the right to refuse testimony (privilege against self-incrimination), which is guaranteed as a constitutional right. They also have the right to receive assistance from legal counsel during the investigation and the right not to be subjected to unfair treatment such as assault or intimidation during the process. If the reference witness is a crime victim, special measures such as closed-door investigations or video recording may be taken to protect the victim. Retaliatory crimes against reference witnesses are subject to enhanced punishment, and a personal protection system for reference witnesses is also in operation. However, the level of protection for reference witnesses is lower than that for suspects, leading to criticisms of excessive investigations or human rights violations by investigative agencies.
Issues with the Reference Witness System
The reference witness system contributes to discovering substantive truth but has several problems. First, the boundary between a reference witness and a suspect is ambiguous, leading to cases where investigative agencies disguise suspects as reference witnesses for investigation. This can infringe on the suspect's right to refuse testimony and right to assistance of counsel. Second, compulsory measures against reference witnesses are limited, making it difficult to deal with uncooperative reference witnesses. Third, human rights violations occur during the investigation of reference witnesses. To address these issues, discussions are ongoing about mandating audio and video recording during reference witness investigations, strengthening the right to participate by legal counsel, and clarifying the criteria for distinguishing between reference witnesses and suspects.
Recent Trends
Key changes related to the reference witness system from 2024 to 2025 are as follows. First, following the adjustment of investigative powers between the prosecution and police, standardization of procedures for investigating reference witnesses is underway. In particular, as police are no longer subject to prosecution control when investigating reference witnesses, internal guidelines for protecting reference witness rights have been strengthened. Second, with the increase in digital evidence, demands for submitting electronic information during reference witness investigations have grown, highlighting legal issues related to the protection of reference witnesses' personal information. A 2024 Supreme Court ruling clarified the scope of consent by reference witnesses regarding the admissibility of digital evidence submitted by them. Third, the revised Criminal Procedure Act, effective from 2025, expanded the right of legal counsel to participate in reference witness investigations, allowing lawyers to participate if requested by the reference witness. Fourth, to prevent retaliatory crimes against reference witnesses, the personal protection system has been strengthened, expanding the scope of non-disclosure of reference witness information and extending the protection period. Fifth, procedures for investigating foreign reference witnesses in international cooperative investigations have been revised, enhancing the protection of foreign reference witnesses' rights and interpretation support.
Related Topics
- [[Suspect (피의자)]]
- [[Witness (증인)]]
- [[Criminal Procedure Act (형사소송법)]]
- [[Right to Refuse Testimony (진술 거부권)]]
- [[Right to Assistance of Counsel (변호인 조력권)]]
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