대만 형사법의 배상명령(附帶民事訴訟)과 우리 법의 시사점

Abstract

This Study is to provide an helpful material for the vitalization of our present system of compensation order prescribed by the Act on Special Cases concerning Expedition(1981)，through the taiwan's example，the contents of which has not been known in Korea until now. In Korea, The Act on Special Cases concering expedition(1981), last amended in 2019, proscrived the order for compensation. When a conviction is to be declared in the procedures of criminal trial of the first instance or the second instance against the crimes as stipulatied in several articles of the Criminal Act(*), the corut may, either ex officio or upon application from the victim or his successor, order a compesation for direct physical damages, medical expenses, and solatium* occurred due to the cirminal acts of the accused case(article 25). The compensation order is specified in the Taiwan's Code of Criminal Procedure(1935)，under the name of Ancillary Civil Action(附帶民事訴訟). The main sources of this order is the Code of Criminal Procedure(Part IX Ancillary Civil Action，articles 487 to 512). According to the Code, those who injured by an offence may bring an ancillary civil action along with the criminal procedure, to request compensation from the defendant and those who may be liable under the Civil Code(article 487, paragraph 1). As a filing period，an ancillary civil action shall be filed after criminal prosecution and after the close of oral arguments in the court of second instance; provided that it may not be filed after the close of oral arguments in the court of first instance and before the appeal(Article 488). As its competent court，where a court pronounced a ruling pursuant to Paragraph 2 of Article 6, and Articles 8 to 10 of the Code of Criminal Procedure, it is deemed to pronounce the same ruling for a supplement civil action. A pronouncement of mistake in jurisdiction and case transfer under the criminal procedure shall also be made in the supplement civil action(Article 489). The Code enumandates the Applicable Law into the Code of Criminal Procedure(Article 490) and the one into the Code of Civil Procedure(Article 491), one by one. And we writes on the relevant prescription with its jurisprudence and the theoretical disputes，one by one as follows : Initiation-Complaint(Article 492), Service of the Complaint and Preparatory Pleading(Article 493)，Summon the Party and Related Person(Article 494), Initiation- Verbal(Article 495), Trial Period(Article 496), Prosecutor Participation(Article 497), Discovery(article 499), Fact Establishment(Article 500), Time of Judgment(Article 501), Ruling – Overruled or Judgment against Defendant(Article 502), Ruling (II) – Overruled or Transferred to Civil Division(Article 503)，Ruling (III) – Transfer to the Civil Division(Article 504). Ruling (IV) – Transfer to the Civil Division(Article 505), Restriction to Appeal to the Third Instance(Article 506), Omission of Reasons in Appeal to the Third Instance for a Supplement Civil Action(Article 507)，Judgment for Appeal to the Third Instance (I) - Overruled(Article 508), Judgment for Appeal to the Third Instance (II) - Adjudication(Article 509), Judgment for Appeal in the Third Instance (III) – Remand or Delivery(Article 510), Ruling (V) – Transferred to a Civil Court(Article 511) and Retrial for Ancillary Civil Action(Article 512). In our exploring the Taiwan's example about the corresponding compensation orrder，this study is limitied to consideration of brief sketch of its contents and its jurisprudence，so we have to wait another comparative models for Common law conuntries and the continental law conuntriesl. Nevertheless，it is to be hoped that this study lays the helpful foundation ont the reform of our compensation order.