[일반논문] : 공소사실을 자백하는 피고인의 증거인부 의견에 관한 검토 - 공소사실을 부인하는 공동피고인인 공범자의 피의자신문조서에 대하여 -

윤태석 ( Tae Seok Yoon ) 연세대학교 법학연구원 2015 法學硏究 Vol.25 No.2

형사소송법 제318조는 당사자의 동의에 의해 증거능력을 부여하는 조항이다. 이 조항에 규정된 당사자의 동의의 본질에 대해 반대신문권포기설이 현재 통설과 판례의 입장이라고 한다. 이 조항이 적용되는 대부분의 재판 사례는 공소사실을 자백하는 피고인이 자신에게 불리한 증거 즉 공소사실이 유죄로 인정될 수 있는 증거에 대하여 동의하는 경우에 해당한다. 공소사실을 부인하는 피고인은 자신에게 불리한 증거에 대해서 부동의할 것이고, 검사는 공소사실을 부인하는 피고인에게 유무죄와 아무런 관련성이 없는 증거를 제출하지 않을 것이며, 피고인의 무죄를 뒷받침하는 증거는 엄격한 증거능력조차 불필요하기 때문이다. 따라서 공소사실을 자백하는 피고인으로서는 거의 대부분의 경우 공소사실을 뒷받침할 유죄의 증거가 충분하기 때문에 동의한 증거에 대하여 반대신문권을 행사하여 그 증명력을 탄핵할 이유가 없으므로‘반대신문권포기설’에 의하더라도 사실상 부당한 결과가 초래되지 않는다. 그러나 공소사실을 자백하는 피고인과 공소사실을 부인하는 공범관계의 피고인이 공동피고인으로 재판을 받는 사안에서 공소사실에 부합하는 증거로는 자백하는 공동피고인의 진술 외에 별다른 증거가 없는 경우에는 전혀 다른 양상이 초래된다. 특히 법정에서 공소사실을 전면적으로 부인하는 공동피고인의 사법경찰관 작성의 피의자신문조서 일부 내용이 자백하는 공동피고인의 진술과 부합하기는 하지만 나머지 진술은 배치되는 경우, 자백하는 피고인으로서는 자신의 자백을 보강해 줄 증거가 필요하므로, 배치되는 진술을 이유로 부동의할 것이 아니라, 최소한의 보강증거가 될 수 있는 범위 내에서는 증거에 동의하여 증거능력을 부여받아야 한다. 이 경우 그 내용이 일부만 부합할 뿐이므로 증거능력이 부여된 나머지 부분에 대해서는 피의자신문 과정에서 그 내용을 충분히 탄핵할 수 있어야 한다. 물론 가분하여 증거동의를 할 수 있다면 그러한 문제가 해소될 수 있겠지만 단일 범죄사실에 대한 동일인의 진술내용 중 일부에 대해서만 가분 동의를 하는 것은 부정되어야 하겠다. 이러한 점을 고려하면, 형사소송법 제318조는 증명력에 대한 반대신문권포기와는 아무런 관련이 없는 단순히 증거능력만 부여되는 규정이라고 해석하여야 하며, 반대신문권을 포기한다고 하더라도 증거능력 부여와 관련된 부분에 한정된다고 해석하여야 하는 결론에 이르게 된다. The Criminal Procedure Code Article 318 allows admissibility of evidence according to the consent of the party. Regarding the nature of this consent of evidence, the majority of scholars and the Supreme Court define it as the ``waiver of the right to cross-examination.`` Most of the court precedents applying this article are related to the accused`s consent of evidence which can act as a disadvantage by proving the facts charged to be guilty. The reason is that the defendant denying the charges will not consent to any evidence that acts as a disadvantage against him, and the prosecutor will not present any evidence that is not related to the defendant`s guilt or innocence, and the evidence proving the defendant guilty is not in need of strict admissibility of evidence. Therefore, the defendant confessing to the facts charged against him is in no need to wield his right to cross-examination`` to impeach the reliability of the evidence that he has consented to, since there is enough evidence to prove him guilty. Applying this theory of the ``waiver of the right to cross-examination`` will not bring about any unfair outcome. However, when the defendant and the accomplice are in court as co-defendants, the former confessing to and the latter denying the facts charged, where there is no other evidence besides the co-defendant`s confession, the situation dramatically changes. In particular, when the protocol of examination by the judicial police about the statements of the co-defendant denying the charges in court only partly corresponds to the other co-defendant`s confession and mostly counters it, the confessing co-defendant needs supporting evidence. Thus the confessing co-defendant will need to consent to the evidence and acquire admissibility in the minimum range of the evidence being supporting evidence, instead of not consenting to it because it counters his statements. In this case, since it only partly corresponds to the statements of the co-defendant, the rest of the evidence having acquired admissibility must be thoroughly impeached during the interrogation of the suspect. Although allowing admissibility on parts of the evidence in question can solve this problem, partly allowing admissibility on a whole statement of one person regarding one crime must be denied. Considering this point, the Criminal Procedure Code Article 318 must be interpreted as a rule purely providing admissibility of evidence, not relating to the waiver of the right to cross-examination regarding reliability. Even if it means waivering the right to cross-examination, one must reach the conclusion that it is only limited to the provision of admissibility of evidence.

변호사시험 형사법 기록형의 출제 방향에 관하여

윤태석 ( Tae-seok Yoon ) 법조협회 2016 法曹 Vol.65 No.8

형사법 기록형 시험에 있어서 어떠한 법문서를 작성하도록 하는 것이 변별력을 갖춘 적절한 문제인가 함에 논의가 있다. 여기에서는 변호사시험이 5회까지 이루어진 시점에서 이러한 논의에 대한 해답을 검토해 보고자 한다. 법문서는 그 작성 목적을 고려하여 그 목적이 달성될 수 있도록 작성하게 하여야 한다. 형사법 기록형 시험은 법학전문대학원의 교과과정 중 가장 연관성이 높은 과목이 형사모의재판 과목이므로 형사모의재판 과목과 연계하여 출제하여야 한다. 의견서 작성은 변론요지서에서 부족한내용을 평가하는 적절한 평가 방법에 속하고, 1심에서 변호인이 없거나 잘못된 변호활동을 바로잡고자 한다면 항소이유서 작성이 좋은 방법이다. 변호사 시험은 선택형과 사례형이 추가로 있는 만큼 선택형과 사례형 시험을 고려하여 기록형에 고유한 문제를 출제함이 바람직하다. 일부러 함정을 의도하거나 실제 재판과정과 배치되는 내용은 최대한 회피하여야 한다. There is a controversy about requiring which document would be suitable to evaluate applicants` practical skill, regarding record type in bar examination. As the bar exam has been conducted 5 times so far, this paper would like to find an answer for the controversy. A Legal document should be written concerning the purpose of the document. Since record type test for criminal law and criminal procedure law is closely related to moot court among law school`s curriculum, the test should properly reflect moot court. Statement of opinion would be a proper way to assess missing points of legal arguments, whereas statement of reason for appeal would be appropriate when a counsel is not appointed or when there is fallacious legal action at the first trial. Since Korean bar exam is also consisted of multiple choice type and case type, it is desirable to set questions that is distinct in record type. Questions that intentionally set traps, or that discords with actual trial should be refrained.

부동산 등기.등록제도의 일원화에 대한 검토

윤태석(Tae-Seok Yoon) 한국비교사법학회 2009 비교사법 Vol.16 No.4

Currently, The real estate public notification system of Korea has two systems operating of registration system and cadastral system. Supreme court manages the registration system for the stability on transaction of real estate. Ministry of Land, Transport and Maritime Affaires takes the cadasral system to notify the condition of physical and tangible part of real estate. However, such a dualistic system on the real estate public notification system causes different records between the physical parts of real estate and the rights of real estate. As a result, those make the burden and the inconvenience of the social and national economy. In order to solve those problems, this study suggests the integrated books in computer having the register books and cadastral records.

지방분권화와 문화행정을 통한 지방재정확충방안에 관한 연구

윤태석(Yoon Tae-Seok),김웅진(Kim Woong-Jin) 한국문화산업학회 2005 문화산업연구 Vol.5 No.1

There are no other objection on the assumption that the decentralization of power for local self-government's development. Especially We can confirm that the decentralization of power must be important factor through experience of many other countries driving the decentralization of power. To pay due regard to their convenience, Our country's decentralization of power and local finance have many improvement. The decentralization of power, especially finance decentralization corresponds to basic concept of local government. So finance decentralization is a problem awaiting solution for activation of local government. That is still a matter of debate that new items of taxation will take concrete shape from finance power of local government. But to take finance security is difficult by limitation of local taxation. Of course, It is advisable to take examination on local consumption-taxation and local income-tax positively. But they have various problems by that. For several reason, There are increase of income except taxation for strengthening finance independence The financial expansion through cultural industry has certain effect and meaning. Local cultural industry bring not only visual effect on local economy but also competition power security through strategy of local specialization and strengthening of positive participation on local administration of region residents. But because our local government is unable to rearing cultural industry oneself, It is required various support by central government and development linking expert cultural companies. There are no other objection on the assumption that the decentralization of power for local self-government's development. Especially We can confirm that the decentralization of power must be important factor through experience of many other countries driving the decentralization of power. To pay due regard to their convenience, Our country's decentralization of power and local finance have many improvement. The decentralization of power, especially finance decentralization corresponds to basic concept of local government. So finance decentralization is a problem awaiting solution for activation of local government. That is still a matter of debate that new items of taxation will take concrete shape from finance power of local government. But to take finance security is difficult by limitation of local taxation. Of course, It is advisable to take examination on local consumption-taxation and local income-tax positively. But they have various problems by that. For several reason, There are increase of income except taxation for strengthening finance independence The financial expansion through cultural industry has certain effect and meaning. Local cultural industry bring not only visual effect on local economy but also competition power security through strategy of local specialization and strengthening of positive participation on local administration of region residents. But because our local government is unable to rearing cultural industry oneself, It is required various support by central government and development linking expert cultural companies.

증인진술서에 의한 진술과 위증죄의 성립 : 대상판결 : 대법원 2010. 5. 13. 선고 2007도1397 판결

윤태석(Yoon, Tae-Seok) 성균관대학교 법학연구소 2010 성균관법학 Vol.22 No.3

The Witness Written Statement system, was introduced, following the amendments of the Korean Civil Procedure Code on January 26th, 2002 and of the Korean Civil Procedure Regulation on June 28th, 2002, with clear legal grounds as opposed to Japan. It is widely used in the civil procedure. The testimony of a witness who swears under oath is warranted a certain amount of credibility by the prospect of a perjury charge if a false testimony is given. However, in the case of witness written statements, whether the credibility of the written statements can be warranted by perjury has been an issue constantly discussed. As the Korean Supreme Court has recently delivered a case regarding the witness written statement system, in which it defined the meaning of a statement made through the witness written statement system and whether it may constitute perjury, the need to examine the problems of the current system and to summarize possible solutions with a focus on this finding, appeared. In conclusion, because the above judgment held that a 'statement' as a components of perjury must be 'made specifically in court', one cannot be punished for perjury even if he testifies in court that "the written statements are true" when the contents of the written statement are actually false. If the testimony of "my written statement is true" is unlikely to be subject to perjury under the current criminal law, then complementary legislation that punishes willful testimonies under oath vouching for the integrity of false written statements is urgent. This paper examines the necessity of such complementary legislation and remedial measures.

민화자료의 박물관화 가능성과 전망

윤태석(Yoon, Tae-seok) 한국민화학회 2014 한국민화 Vol.- No.5

프로스포츠구단 SNS 활동 관여도가 구매의도에 미치는 영향

윤태석(Tae Seok Yoon),배상우(Sang Woo Bae),박두용(Doo Young Park),정상원(Sang Won Jung) 한국사회체육학회 2013 한국사회체육학회지 Vol.0 No.53

This Study examined how sports fan`s involvement levels for Social Network Service (SNS) of professional sports teams affected their purchasing behaviors. Data analyses for this study included an exploratory factor analysis, cross tabulation analyses, correspondence analyses, and multi-variate analyses of variance for two hundred ninety five subjects using SPSS version 20.0. The result of this paper as follows.: The results examining the purchasing intention behaviors for tickets and licensing products among three groups indicated people belonging to the Low involvement group was less likely to recommend licensing products to others compared to people of the Middle and High involvement groups. There were statistically significant differences in re-purchasing intention for game tickets and licensing products among all three groups. In the re-purchasing intention for concessions, people of High group were different from people of Low and Middle groups. The results examining the purchasing intention behaviors for tickets and licensing products among three groups indicated people belonging to the Low involvement group was less likely to recommend licensing products to others compared to people of the Middle and High involvement groups. There were statistically significant differences in re-purchasing intention for game tickets and licensing products among all three groups. In the re-purchasing intention for concessions, people of High group were different from people of Low and Middle groups.

프로야구 경기장의 서비스 품질이 관람만족 및 충성도, 구전의도에 미치는 관계

설민신(Min Sin Sul),박두용(Doo Yong Park),윤태석(Tae Seok Yoon) 한국사회체육학회 2012 한국사회체육학회지 Vol.0 No.49

This study progressed a research on which influence there is among service quality, spectating satisfaction, loyalty and word-of-mouth intention of the currently most popular professional baseball stadium. The purpose of this study is to establish a marketing plan of using the sports facilities for increasing spectators of professional baseball by creating diverse marketing plans through the facilities of professional baseball stadium. The subjects of this study were progressed a research targeting 347 people by directly visiting professional baseball stadiums in Seoul and Gyeonggi area. Data processing of this study was carried out frequency analysis, reliability test, exploratory factor analysis, and confirmatory factor analysis. And to verify the established structural equation model, the path analysis was carried out. For the objective of research, the collected materials were utilized SPSS 18.0 statistical program and AMOS 18.0 for verifying structural model. The results of this study showed that the influence of service quality in stadium upon spectating satisfaction has positive effect on spectating satisfaction in all sub-factors of service quality. Second, the spectating satisfaction in the spectators of visiting stadium was indicated to have positive influence upon loyalty. Third, the spectating satisfaction in the spectators of visiting stadium was indicated to have positive influence even upon word-of-mouth intention. Fourth, finally, the spectators` loyalty was indicated to have positive influence upon word-of-mouth intention.

프로야구 타이틀 스폰서 이미지 일치성과 스폰서의 브랜드 자산, 구매의도와의 관계

김보미(Bo Mi Kim),이광용(Kwang Yong Lee),윤태석(Tae Seok Yoon) 한국사회체육학회 2012 한국사회체육학회지 Vol.0 No.49

This study attempted to investigate what effect the congruity in sponsor, sporting event and self images has on sponsor brand equity and purchase intention for an enterprise that sponsors the event. By selecting 270 persons who had experience of playing CJ Magumagu games, a pro-baseball sponsor, was used for actual analysis. For data processing, SPSS version 15.0 for Windows was used to perform exploratory factor analysis and finish the job of factor sharing while reliability analysis was performed using Cronbach`s α to test the reliability among measurement variables. Besides, correlation analysis was carried out to measure about multicollinearity among measurement variables. Also, confirmatory factor analysis using AMOS 7.0 was conducted to raise the accuracy of cofactors for each derived as a result of exploratory factor analysis, while model fit index analysis was conducted to assess goodness of fit of established model. Lastly, to verify the established hypotheses, path analysis was used to decide the adoption or rejection of hypotheses. Results of this study are as follows: First, the hypothesis “Image congruities (pro-baseball and sponsor image congruity, self-image and sponsor image congruity) will have a positive effect on sponsor product`s brand equity (brand awareness, brand loyalty, perceived quality)” was adopted partially. Pro-baseball and sponsor image congruity had a significant effect on brand awareness, brand loyalty and perceived quality while self-image and sponsor image congruity had a positive effect on brand loyalty and perceived quality. Second, the hypothesis “Sponsor brand equity (brand awareness, brand loyalty, perceived quality) will have a positive effect on the product purchase intention” was adopted partially. Of brand equity, perceived quality had a significant effect on the intention of purchasing sponsor product. Third, the hypothesis “Image congruity (pro-baseball and sponsor image congruity, self-image and sponsor image congruity) will have a positive effect on the intention of purchasing sponsor product” was adopted partially. Pro-baseball and sponsor image congruity did not have a significant effect on the product purchase intention, while self-image and sponsor image congruity had a significant effect on the product purchase intention.

리어가이더 시작각 변화가 횡류홴 성능에 미치는 영향

김형섭(Hyung-Sub Kim),김동원(Dong-Won Kim),윤태석(Tae-Seok Yoon),박성관(Sung-Kwan Park),김윤제(Youn J. Kim) 대한기계학회 2004 대한기계학회 춘추학술대회 Vol.2004 No.4

A cross-flow fan relatively makes high dynamic pressure at low speed because a working fluid passes through an impeller blade twice and blades have a forward curved shape. Therefore, the performance of a cross-flow fan is influenced 25% by the impeller, 60% by the rearguider and the stabilizer, 15% by the heat exchanger. At the low flow rate, there exists a rapid pressure head reduction, a noise increase and an unsteady flow against a stabilizer and a rearguider. Moreover, it is difficult to analyze the reciprocal relations of the cross-flow fan because each parameter is independent. Numerical analyses are conducted with different starting angles of the rearguider. Two-dimensional, unsteady governing equations are solved, using FVM, PISO algorithm, sliding grid system and κ?ε standard turbulence model.