피해자의 재판절차진술권에 관한 연구: 미국 연방사형재판에서 피해자영향증거를 중심으로
분야
사회과학 > 법학
저자
장원경 ( Won Kyung Chang )
발행기관
한국피해자학회
간행물정보
피해자학연구 2012년, 제20권 제2호, 55~85쪽(총31쪽)
파일형식
77000487.pdf [무료 PDF 뷰어 다운로드]
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    영문초록
    Article 27, paragraph (5) of the Constitution of the Republic of Korea guarantees a victim of crime the right to give a statement during trial proceedings. Article 294-2, paragraph (1) of the Criminal Procedure Act specifies this constitutional right: "The court shall, upon receiving a petition from a victim of a crime or his/her legal representative (including his/her spouse, lineal relative, sibling, if the victim is dead), admit such victim as witness for examination." Despite these provisions, a victim`s right to give such statements during trial proceedings has not been substantially realized in the Korean criminal justice procedure. Details of exercising this right-such as during exactly which phase of trial proceedings a victim makes statements and how a victim presents those statements-have not yet been enumerated in law. In addition, a disagreement has been brought up regarding what a victim may express in his/her statement-whether or not to allow a victim`s opinion concerning the future punishment of a defendant, if found guilty. In the United States, on the other hand, victim impact evidence has been admitted in the sentencing phase of capital trials over the last twenty years. In Payne v. Tennessee (1991), the U.S. Supreme Court held that "if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar," reversing its prior decisions in Booth v. Maryland (1987) and South Carolina v. Gathers (1989). Of the three different types of victim impact evidence identified by the Court, only two-evidence of the victim`s unique personal characteristics and evidence of the crime`s impact on the victim`s family and community (or victim impact statement) have been allowed at capital sentencing proceedings. The third kind of evidence-the victim`s sentencing opinion (or victim statement of opinion)-is still prohibited by the Court`s prior decision. After Payne v. Tennessee, the federal criminal justice system has adopted a statutory basis of victim impact evidence and developed criteria for procedural controls and substantive limits on such evidence. Enacted in 1994, the Federal Death Penalty Act explicitly permits submission of a victim impact statement and requires a prosecutor to provide a defendant with in-advance notice of the intent to use such evidence. Following the Federal Death Penalty Act, federal courts have granted victim impact evidence as a non-statutory aggravating factor and have generally allowed such evidence in federal capital cases. Federal courts have admitted the victim`s personal characteristics and a wide range of statements about the effect of murder on the victim`s family, without placing any limitations on the number of witnesses who may testify. Federal courts have also permitted presentation of a victim`s pre-death photographs, videotapes, and poems. However, strictly observing the procedural requirement of the Federal Death Penalty Act, federal courts have requested the prosecution to give sufficient notice to the defense by supplying a considerably detailed description of victim impact evidence. Referring to United States federal capital trials, several insights for successful implementation have been raised to support a victim`s active exercise of his/her right to give a statement in trial proceedings in Korea. For instance, the Korean Criminal Procedure Act provisions, allowing the court to limit the number of victims who present a statement and presuming an oral statement as the only legitimate form, should be amended, because a victim gives a statement as his/her constitutional right, not in the passive position of a witness. By the same reason, a victim`s statement should be scheduled after a judge reaches a conviction. Even though it is not possible in Korea to separate the sentencing phase plainly from the rest of the trial proceedings, by placing a victim`s statement in the presumptive sentencing phase, he/she would enjoy relative latitude to tell his/her story. Lastly, since a judge, not a jury, makes a sentencing decision in a Korean criminal trial, a victim`s opinion about punishment of the person who wronged him/her is unlikely to exert a prejudicial influence on the judge`s decision. Thus, unlike United States federal capital trials, it does not seem necessary to prohibit a victim`s statement of opinion on sentencing from being presented in Korean criminal trials.
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