재심청구절차의 구조와 재심개시결정의 효력

Abstract

The purpose of criminal litigation procedures is to discover the substantive truth. However, the process by which human judges discover the truth based on free deliberation based on evidence is inherently bound to have the possibility of misjudgment. There are various reasons for misjudgment, including reasons external to the judge, such as distortion and error of evidence, and reasons internal to the judge, such as violation of rules of experience and logic. Practically the final procedure to avoid misjudgment is the retrial procedure. In the criminal retrial procedure that proceeds through the process of [request for retrial - decision to start retrial - retrial], the step of deciding whether to start a retrial is an important step in deciding whether to continue or stop the recovery of the substantive truth through retrial. In other words, it is the moment when it is decided whether or not to live the rest of your life with injustice. The problem of the structure of the retrial request procedure is directly connected to the question of whether the retrial procedure has any special characteristics that are different from ordinary trial procedures. While general criminal procedures begin with the prosecutor’s filing of an indictment, retrial procedures begin with a request for retrial. If there is no request for retrial, the res judicata of the existing final judgment remains. The court that receives the request for retrial determines from an ex officio point of view whether the reasons for retrial claimed by the applicant correspond to the reasons prescribed by law. In addition, a factual investigation may be ordered to confirm the existence of the reason, and the opinions of the person who requested a retrial and the other party must be heard. However, such factfinding and opinion-hearing can ultimately be said to be the court’s ex officio authority to determine whether there are grounds for retrial. A decision to initiate a retrial is a decision that allows “new” recognition of facts regardless of the existing final judgment. In other words, it should be viewed as a decision that effectively confirms the exclusion of the res judicata of the existing final judgment. Therefore, if the decision to initiate a retrial is confirmed without an immediate appeal (or a decision to dismiss the immediate appeal), it is reasonable to believe that the effect of the judgment subject to retrial is excluded. And once the decision to commence a retrial is confirmed, the effect of the original judgment is essentially extinguished, the execution of the sentence is suspended, and as a defendant, it is reasonable to view that procedural rights are guaranteed as in a normal trial.