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A study on the fact finding in the murder case without a body by the indirect evidence

  • DONG-A LAW REVIEW
  • 2013, (59), pp.107-155
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Bae, Moon-Bum 1

1동아대학교 석당인재학부

Accredited

ABSTRACT

The body is the direct evidence in the murder case. There is no body in the murder case without a body. Thus, the suspicion of murder must be proved by indirect evidence or circumstantial evidence. The indirect evidence and the direct evidence are equal in the probative force of evidence. The judge use the principle of Free evaluation of evidence in evaluating the evidence submitted. And the principle of Free evaluation of evidence is based on the logic-rule and the experience-rule. The experience-rule is inferior to the logic-rule. Therefore, the principle of Free evaluation of evidence is insufficient in the murder case without a body. Eventually, an alternative methodology should be necessary for the murder case without a body. The Indirect proof can be used in the case that the probative force of the evidence submitted is weak. But, the indirect proof is rather a compulsion than a proof. Even though the proof will be completed, there will be a suspicion of survival possibility of the victim. Thus, the argument from ignorance can be used to eliminate the suspicion.

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