자유심증주의의 범위와 한계

• 영문명: Free Evaluation of Evidence: Scope and Limitations
• 발행기관: 한국형사판례연구회
• 저자명: 황태정(Hwang, Tae-Jeong)
• 간행물 정보: 『형사판례연구』형사판례연구 제27권, 457~492쪽, 전체 36쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2019.06.30

영문 초록

The cause of the crime should be judged synthetically through a subjective evaluation of the motive of the crime as well as an objective evaluation based on the laws of science. In order to make a guilty judgment based on indirect evidence(circumstantial evidence), the evidence must be strictly related to the facts that require proof(factum probandum), and it should be a practical matter to rule out the rational hypothesis that the accused is not guilty. However, it can not be said that the demand for such relevance and substantivity should exclude all irrational hypotheses on the accused. The legal maxim ‘in dubio pro reo’ serves as the lighthouse of the night sea, which leads the judgment to the right destination, but the lighthouse is not the destination of the ship named ‘free evaluation of evidence’. The important thing is to take the lighthouse warning and head for the right destination. From this perspective, it will be necessary to appreciate the intent of Supreme Court’s decision, which states that “The recognition of guilt in a criminal trial shall be based on the proof beyond reasonable doubt. It does not, however, require a degree to exclude all possible doubts that are not rational. It is not permissible to exclude evidence with probative power based on suspicion without reasonable grounds because it is beyond the limitations of the Principle of Free Evaluation of Evidence.”

목차

[대상판결] 대법원 2012. 9. 27. 선고 2012도2658 판결 <판결1: 노숙인사건>

대법원 2013. 9. 12. 선고 2013도4381 판결 <판결2: 산낙지사건>

[연구]

Ⅰ. 들어가며

Ⅱ. 법관의 자유판단

Ⅲ. 합리적 의심이 없는 정도의 증명

Ⅳ. 마치며: 사안의 검토 및 결론

키워드

자유심증 간접증거 정황증거 증명력 합리적 의심이 없는 정도의 증명 Free Evaluation of Evidence Indirect Evidence Circumstantial Evidence Probative Power Proof beyond Reasonable Doubt