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목격자 진술의 신빙성에 관한 연구

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dc.contributor.advisor한인섭-
dc.contributor.author송종호-
dc.date.accessioned2017-07-19T03:32:28Z-
dc.date.available2017-07-19T03:32:28Z-
dc.date.issued2014-02-
dc.identifier.other000000016657-
dc.identifier.urihttps://hdl.handle.net/10371/128613-
dc.description학위논문 (석사)-- 서울대학교 대학원 : 법학과, 2014. 2. 한인섭.-
dc.description.abstract형사 절차에서 오판의 가능성은 항상 존재하여 왔다. 학자들은 무고한 시민이 형사 절차에 의하여 희생당하지 않도록 노력을 기울여 왔다. 하지만 여전히 수많은 잘못된 판결들이 존재하고 있다. 그런데 영국과 미국의 연구결과에 의하면 무고한 시민이 기소당한 중요한 이유는 목격자 진술이었다. 본 논문은 목격자 진술에 관하여 크게 두 가지 측면에 관심을 기울였다. 첫째는 목격자 진술 취급에 관한 실태 분석이며 두 번째는 한국적 목격자 진술 신빙성 판단지침을 제작한 것이다.
이론적 연구에 의하면 목격자의 기억은 크게 세 단계로 분류된다. 정보 취득 단계, 정보 저장 단계, 정보 인출 단계가 바로 그것이다. 세 단계 모두에서 목격자 진술에 왜곡이 발생하고 있었다. 정보 취득 단계에서는 노출시간, 노출빈도, 폭력성, 스트레스, 무기집중효과, 선택적 인지, 돌출적 요소 등이 오류를 발생시키고 있었다. 정보 저장 단계에서는 시간의 경과, 사후 정보 효과, 추측, 응고 효과 등이 영향을 미치고 있었다. 정보 인출 단계에서는 수사관의 지위, 신뢰도, 태도, 질문방식, 진술압박, 그리고 언어의 한계, 경찰과 변호사의 영향이 오류를 발생시키고 있었다. 범인 식별 절차에서는 수사관의 암시, 목격자 상호 간의 영향, 기억의 변형, show-up, 잘못된 line-up 등이 발생하고 있었다. 아동 목격자 진술의 경우 그 자체로 신빙성이 떨어졌다.
실제로 한국의 재판례를 검토해 본 결과 한국에서도 비슷한 문제점이 나타나고 있었다. 하지만 한국의 경우 이론에서는 검토할 수 없었던 철저히 한국적인 문제점이 발견되어 추가적으로 분석하였다. 바로 목격자 진술이 유일한 증거인 경우, 목격자 진술에의 과도한 의존, 목격자가 사건에 이해관계를 가진 경우, 피고인에게 유리한 정보를 무시, 목격자 진술 내용이 체포된 피고인의 특징과 불일치, 조서재판의 흔적, 수사기관의 증거확보절차 미비, 법원의 권고사항 미준수, 경찰의 부적절한 수사를 체크하는 검찰의 기능 결여, 무리한 기소, 다른 사건의 피의자를 당해 사건의 목격자에게 식별 의뢰가 바로 그것이었다.
목격자 진술의 제고방안으로는 목격자 진술에 대한 이해의 필요성, 신빙성 판단지침의 준수, 최초 경찰 수사 단계의 중요성 등을 제시하였다. 외국의 경우 전문가 진술, 배심원 설시를 통해 목격자 진술에 대한 판단주체의 이해도를 높이고 있었다. 그리고 한국에는 아직 목격자 진술의 신빙성을 판단할 때의 가이드라인이 없기에 가이드라인을 제작하였다. 이 가이드라인은 수사, 기소, 재판 단계 모두에서 도움이 될 것이다. 또한 최초 경찰 수사 단계에서 목격자 진술이 훼손된다면 올바른 판단이 불가하므로 최초 경찰 수사 단계부터 주의를 기울여야 한다.
목격자 진술이 한국 형사사법체계에서도 오류의 원인으로 기능함을 알아보았다. 앞으로 목격자 진술을 조심스럽게 취급하여 잘못된 판결이 감소하기를 기대해 본다.
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dc.description.tableofcontents제 1 장 서 론 ···································································· 1
제 1 절 연구의 목적 ············································································ 1
제 2 절 연구의 내용과 방법 ·························································· 3


제 2 장 목격자 진술에 관한 일반이론 ················· 6
제 1 절 목격자 진술에 관한 국내 및 해외의 선행연구 ·· 6
1. 목격자 진술을 다룬 국내의 선행연구 검토 ················································· 6
2. 외국의 목격자 진술 관련 선행연구 검토 ···················································· 12
3. 국내의 연구의 한계와 본 연구의 필요성 ···················································· 16
제 2 절 목격자 진술의 개념 ························································ 17
제 3 절 목격자 진술의 특징 ························································· 18
1. 정보 취득 단계 ············································································································ 19
2. 정보 저장 단계 ············································································································ 24
3. 정보 인출 단계 ············································································································ 26
제 4 절 목격자의 범인식별절차와 관련된 문제점 ··········· 29
제 5 절 아동목격자 진술의 특징 ·············································· 31
제 6 절 일반이론 요약 및 판례 분석의 준거틀 ··············· 33
제 7 절 자유심증주의와 본 논문 판단지침과의 관계 ···· 36
1. 자유심증주의의 의의와 연혁 ··············································································· 36
2. 자유심증주의의 내용과 한계원리 ······································································ 37
3. 판단지침의 제작과 자유심증주의와의 모순 여부 ···································· 38

제 3 장 판례를 통해 살펴 본 목격자 진술의 실태
제 1 절 자료 수집 방법 ································································· 40
제 2 절 목격자의 정보 취득 단계 사례 연구 ····················· 42
1. 범죄에의 노출시간이 짧고 노출빈도가 적은 사건 ·································· 42
2. 폭력적·스트레스 유발성 사건을 목격하거나 무기에 시선을 빼앗긴 목격자 ··············································································································································· 45
3. 선택적 인지와 돌출적 요소 기억 ······································································ 48
제 3 절 목격자의 정보 저장 단계 사례 연구 ····················· 50
1. 시간이 갈수록 기억이 명료해지는 목격자 ················································· 50
2. 사후 정보 효과 ············································································································ 52
3. 목격한 것에 추측의 과정을 더하는 목격자 ·················································· 54
4. 응고 효과 ······················································································································ 56
제 4 절 목격자의 정보 인출 단계 사례 연구 ····················· 58
1. 수사관의 지위, 신뢰도, 태도, 질문방식, 진술압박 ································ 58
2. 언어의 한계 ··················································································································· 60
3. 경찰과 변호사의 영향 또는 수사관의 암시 ················································· 61
제 5 절 목격자의 범인 식별 진술 단계 사례 연구 ········· 64
1. 목격자 상호 간의 영향 ··························································································· 64
2. 기억의 변형 과정 ······································································································· 67
3. show-up의 실시 ········································································································· 69
4. 부정한 line-up의 실시 ···························································································· 78
제 6 절 아동 목격자 진술 사례 연구 ····································· 79
제 7 절 추가적 문제점 연구 ························································ 85
1. 목격자 진술이 유일한 유죄의 증거 ································································· 85
2. 목격자 진술에 대한 과도한 신뢰 ······································································ 91
3. 목격자가 사건에 대한 이해관계가 있는 경우 ············································ 95
4. 피고인에게 유리한 정보를 무시·묵살 ··························································· 102
5. 목격자 진술 내용이 체포된 피고인의 특징과 불일치 ·························· 105
6. 조서재판의 흔적(1심 재판부) ············································································· 107
7. 수사기관의 증거확보절차 미비 ········································································ 111
8. 법원의 권고사항 미준수 ····················································································· 112
9. 경찰의 부적절한 수사를 체크하는 검찰의 기능 결여 ·························· 115
10. 무리한 기소 ·············································································································· 118
11. 다른 사건의 피의자를 당해 사건의 목격자에게 식별 의뢰 ············ 121
제 8 절 판례 분석 결과 요약 ··················································· 123


제 4 장 목격자 진술의 신빙성 제고방안 ·········· 127
제 1 절 목격자 진술 취약성에 대한 이해의 필요성 ···· 127
1. 판결문에서 나타나는 차이점 ·············································································· 127
2. 외국에서의 이해도 제고 노력 ·········································································· 128
3. 목격자 진술에 대한 교육의 필요성 ································································ 133
제 2 절 목격자 진술의 신빙성 판단 시 판단지침 ·········· 134
제 3 절 대법원 판시 사항 준수의 필요성 ························· 138
제 4 절 최초 경찰 수사 단계의 중요성································ 139
제 5 절 변호인의 참여권 보장 ················································· 140
제 6 절 목격자 진술에 관한 세부준칙 규정 ······················ 141
제 7 절 인증보다 물증에 의한 수사를 할 필요성 ·········· 143


제 5 장 결 론 ······························································ 145
참고문헌 ······························································································· 147
Abstract ································································································ 157
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dc.formatapplication/pdf-
dc.format.extent1720864 bytes-
dc.format.mediumapplication/pdf-
dc.language.isoko-
dc.publisher서울대학교 대학원-
dc.subject.ddc340-
dc.title목격자 진술의 신빙성에 관한 연구-
dc.typeThesis-
dc.description.degreeMaster-
dc.citation.pages167-
dc.contributor.affiliation법과대학 법학과-
dc.date.awarded2014-02-
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