궐석재판과 증거동의 의제에 관한 소고

Abstract

Korea’s precedents, including an object precedents of this study have applied criminal procedure law §318 ② to all default judgement, many scholars agreed this. But to take the disciplinary action against nonattendance of the accused with the fictitious assent of admissibility runs counter to the suitability principle of measure/purpose, the division pinciple of burden of proof, the principle of trial by the evidence, the principle of substantial truth. I propose that the fictitious assent of admissibility can be abate/restrict by the construction of §318 ② in some judgement by default just like the table 1, and §318 ② must be amended in other default judgement just like table 2. table 1. abatement/ restriction of application of §318 ② by construction table 2. abatement/ restriction of §318 ② by amendment I think that this while people regard the assent of admissibility as normal situation and utilize fictitious assent of admissibility too easily in the real trial, scholars receive that tendency of the real trial uncritically. For the settlement of the principle of trial by the evidence, the principle of substantial truth, I wish that this article becomes a moment to think the fictitious assent of admissibility deeply again.