탄핵증거에 관한 형사판례 분석

Abstract

The theory of the impeachment evidence was originated from the Anglo-American evidence law. But in Korea, impeachment evidence provision is prescribed in the article 318-2 of the Korean Criminal Procedure Code. The concept of impeachment evidence is not the evidence to argue with probative power of the statement evidence, but the evidence to argue with probative power of the substantive evidence. Impeachment evidence sometimes is used with the same meaning as refutative evidence in judicial precedents. Some cases are found, in witch refutative evidence is used by means of counter evidence. This practice will lead to confusion on the concepts that serve as impeachment evidence → refutative evidence → counter evidence. About the scope of impeachment evidence, Supreme court has taken unlimited attitude, but if prosecutor submit impeachment evidence, that does not allowed to be used as substantive evidence, whereas the accused submit impeachment evidence, that does allowed to be used as substantive evidence. On the subject of impeachment evidence, although criticized by some opponents, the accused’s statements in the court can also be the target attenuated by impeachment evidence. Even if the accused does not confess to the crime, that does not answer simply not-guilty or silent, but does argue in fact by the presence of various counter fact incompatible with the crime. So we can understand the stance of the precedents. Without distinction between impeachment evidence and counter evidence, that evidence is used to attenuate the probative power of the substantive evidence, or to prove the counter fact incompatible with the crime. So the court does not apply the legal principle of strict proof to that, and presents very generous stance concerning the proof procedure of impeachment evidence.