재판절차에서의 피고인의 태도를 이유로 한 양형 가중과 피고인의 방어권 보장

Abstract

It is usual for the judge to raise the penalty when the accused strongly denies his charge on trial notwithstanding the certain evidence to prove his crime, because the judge considers the denial by the accused as disturbing the trial. But the judge may not expect the accused to confess his crime because the contemporary legal system including the criminal justice system is based on the person of egoism. On the contrary, it is usual for the accused to deny the charges because he is egoistic. When a judge raises the penalty because the accused strongly denies his charges even though there is the certain evidence, it may invalidate the right to be presumed innocent because the accused cannot dare to deny his charges even when he is innocent without taking the risk of the increased penalty in case he fails to prove his innocence. The increase of the penalty is based on the presumption of guiltiness. It conflicts with the constitutional principle of nullum crimen nulla poena sine lege because the judge increases the penalty without any ground on the law. It may be called as the penalty of the “crime of rudeness of the accused to the court.”