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).

[대상 판결] 대법원 2005. 4. 29. 선고 2005도70 판결
  1. 공소사실의 요지
  2. 사건의 경위
  3. 소송의 경과
 〔연구〕
  1. 서 론
  2. 미국과 일본의 상소심 판결 증거설시 방법
  3. 우리 형사재판 실무상 증거조사절차
  4. 채택 조사와 조사 채택의 비교
  5. 유죄판결을 하면서 이른바 기록에 의하면 이라는 설시를 하는경우에 대한 평가
  6. 적법한 증거조사를 거치지 않은 자료의 취급
  7. 무죄판결의 증거설시
  8. 형량을 정하는 자료에 대한 조사 및 평가
  [참고문헌]
  [Abstract]

• 오기두(서울중앙지방법원 부장판사 · 법학박사) | Oh, Gi Du