피고인의 범행 기타 행위에 대한 증거의 사용제한에 관한 커먼로 국가 입법례 비교

In a trial by jury in South Korea, the jury judges guilt or a verdict of not guilty, and if a defendant's guilt is determined, the jury makes a recommendation of the appropriate level of penalty. Because trial and sentencing functions are unified in South Korea, character evidence such as defendant's bad character including prior convictions and misconducts can be adduced without restriction. Therefore it is held that character evidence which is only relevant to sentencing could improperly prejudice the jury, the admissibility of character evidence should be limited to guarantee the right to a fair trial. In most common law countries, the use of the general evidence of bad character is strictly restricted by the law of evidence. Namely, while character evidence is generally inadmissible to prove conduct, the evidence of specific character relevant to an identified issue is admissible if its probative value outweighs its prejudicial effect. In the U.K. (England and Wales) the criminal justice act 2003 abolished in principle the common law rules of the evidence of bad character which prohibited the use of character evidence to prove the guilt of a criminal defendant. But it seems an exception comparing with the law of evidence of other common law counties. In South Korea it is suggested that guilt-finding and sentencing procedures should be separated or the jury's role should be limited to finding the facts. However, it could solve only the half of the problem. Character evidence could be still adduced by the prosecution as a circumstantial evidence to prove guilt. So it is necessary to reform the current law of evidence to include the character evidence rule developed in common law counties to protect the accused from unfair prejudice.