인문학
사회과학
자연과학
공학
의약학
농수해양학
예술체육학
복합학
DBpia AI
AI 에이전트
AI 아이디어
AI 리더
AI 뷰어
Citeasy
크롬 서지관리 다운로드
개인구독
소속 기관이 없으신 경우, 개인 정기구독을 하시면 저렴하게
논문을 무제한 열람 이용할 수 있어요.
지원사업
학술연구/단체지원/교육 등 연구자 활동을 지속하도록 DBpia가 지원하고 있어요.
커뮤니티
연구자들이 자신의 연구와 전문성을 널리 알리고, 새로운 협력의 기회를 만들 수 있는 네트워킹 공간이에요.
초록· 키워드
The Korea criminal procedure law(hereinafter referred to as KCPL) was revised to introduce criminal discovery system which is similar to United States of America Federal Rules of Criminal Procedure (hereinafter referred to as FRCP) in 2007.6.1(effective in 2008.1.1). Discovery is one of the most important processes in KCPL. Criminal discovery is the process by which a criminal defendant can get information(books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items) about their case held by the prosecutor. The process of "discovering" the information is sometimes referred to as "disclosure" in USA. The purpose of discovery is to guarantee the defendant's defense right originated from the principle of the presumption of innocence in criminal procedure. Also it is to reduce the possibility of innocent people's conviction caused by prosecutor's supression of defendant's exculpatory evidence. This paper's aim is to review whether our newly introduced discovery system will function well or not on the perspective of Constitution and USA discovery system which have been adopted for long time and so many trial and error experiences.
KCPL article 266-3 provides that criminal defendant or his attorney can ask prosecutor to deliver some documents and physical evidence material to prosecution fact and punishment sentence after indictment. Even though Constitutional Court decided that defendant have the right to access and get documents and physical evidence in government possession, it is great change to permit defendant to obtain evidence possessed by government in criminal procedure law. The motive to revise KCPL and introduce discovery system might be from the result of Constitutional Court decision. It is very desirable to have a good system like discovery system because from the new discovery system, defendant's right in criminal procedure became advanced. Regrettably, reading carefully revised discovery law, some deficient contents is found regarding the substantial protection of defendant's right granted by Constitution. That is KCPL article 266-3(2) providing that prosecutor can limit the scope of discovery or deny defendant's request to get documents or physical evidence if there are national security problem, the necessity to protect witness, the concern to lose evidence, the problem of investigation obstacle and so forth in case of disclosure of evidence asked by defendant. Consequently this article can not make defendant acquire material evidence exculpatory to his case. Especially the contents of KCPL 266-3(2) is too vague and broad to be constitutional. The purpose of this paper is to review the KCPL based on Constitutional perspective and USA law(Constitution Amendment 5th and the Federal Rule of Criminal Procedure 16). From my legal analysis by comparison with USA law aforementioned and the purport of Constitutional Court's decision, I concluded that KCLP must be abolished.
KCPL article 266-3 provides that criminal defendant or his attorney can ask prosecutor to deliver some documents and physical evidence material to prosecution fact and punishment sentence after indictment. Even though Constitutional Court decided that defendant have the right to access and get documents and physical evidence in government possession, it is great change to permit defendant to obtain evidence possessed by government in criminal procedure law. The motive to revise KCPL and introduce discovery system might be from the result of Constitutional Court decision. It is very desirable to have a good system like discovery system because from the new discovery system, defendant's right in criminal procedure became advanced. Regrettably, reading carefully revised discovery law, some deficient contents is found regarding the substantial protection of defendant's right granted by Constitution. That is KCPL article 266-3(2) providing that prosecutor can limit the scope of discovery or deny defendant's request to get documents or physical evidence if there are national security problem, the necessity to protect witness, the concern to lose evidence, the problem of investigation obstacle and so forth in case of disclosure of evidence asked by defendant. Consequently this article can not make defendant acquire material evidence exculpatory to his case. Especially the contents of KCPL 266-3(2) is too vague and broad to be constitutional. The purpose of this paper is to review the KCPL based on Constitutional perspective and USA law(Constitution Amendment 5th and the Federal Rule of Criminal Procedure 16). From my legal analysis by comparison with USA law aforementioned and the purport of Constitutional Court's decision, I concluded that KCLP must be abolished.
#증거개시
#적법절차원리
#당사자주의
#미국연방형사소송규정
#변호인의 조력을 받을 권리
#무죄추정
#Brady 원칙
#미국대법원Discovery
#Federal Rules of Criminal Procedure
#Exculpatory
#Material
#Constitution
#Constitutional Court
#Constitution Amendment 5th
상세정보 수정요청해당 페이지 내 제목·저자·목차·페이지정보가 잘못된 경우 알려주세요!
목차
- Ⅰ. 서론
- Ⅱ. 증거개시제도의 전반적인 내용 검토
- Ⅲ. 헌법적 관점에서 본 현행 형사소송법 제266의 3 제2항의 문제점
- Ⅳ. 우리나라와 미국과의 증거개시제도 비교 및 개선방안
- Ⅴ. 결론
- 참고문헌
- Abstract
참고문헌
참고문헌 신청최근 본 자료
UCI(KEPA) : I410-ECN-0101-2013-360-000475038
