상소심 법원의 원심 증거조사과정 평가방법

• 영문명: The Appellate Courts Way of Reviewing the Proceedings of Examining Evidence Made by Lower Courts
• 발행기관: 한국형사판례연구회
• 저자명: 오기두(Oh, Gi Du)
• 간행물 정보: 『형사판례연구』형사판례연구 제18권, 454~518쪽, 전체 65쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.06.30

영문 초록

Some appellate courts find facts using the pharase on their written judgments as “with the evidence which was legally examined and admitted by the lower court” or “with the evidence legally examined, admitted by the lower court.” However those kinds of expressions are inappropriate because those do not exactly describe the proceedings of examining eivdence made by lower courts. The lower courts, especially trial courts, admit evidences,such as testimonies of witnesses or protocols made by prosecutors,which are admissible under the criminal procedure law before they examine those evidences. So those expressions on the written judgment should be corrected into the phrases like “with the evidence which was legally admitted and examined by the lower court” or “with the evidence legally admitted, examined by the lower court.”Appellate courts should be careful about using the phrase, “as the record shows that ”, even though they … pronounce not guilty judgment because there are various kinds of documents in the court record. The evidence which is put in the court record and cited by the appellate court should be legally obtained and examined in the courtroom. If the appleallte court rules guilty judgment using that pharase even though there are illegally obtained or examined evidence in the court record, that judgment breaches evidence rules. To pronounce the guilty judgment, the appellate court should cite the evidences of the trial court which are legally admitted and examined. However the appellate courts should not find fact with no evidence on its written judgment, because fact finding shall be based on evidence(Article 307 of Korean Criminal Procedure Law).

키워드

상소심 증거조사 증거채택 증거기록 사실인정 증거재판주의 Appellate court examining evidence admission of evidence court record fact finding