특별사면과 재심

Abstract

Where “special pardon which invalidates the effect of pronouncement of sentencing” is rendered regarding a final judgment after a final conviction, one may seek retrial as to the final judgment. Supreme Court decision 96Do2153 decided July 22, 1997 held that “in case of special pardon which invalidates the effect of pronouncement of sentencing, the retrial object does not exist, and thus no trial can be held since the object of adjudication no longer exists.” Pursuant to the above Supreme Court decision, the order of commencing a retrial could not be made. However, it is unreasonable to deprive an opportunity to receive a judgment of not guilty through retrial where it is clear that the final judgment is erroneous in substance. Thus, this article reviews reasonableness of the above Supreme Court decision. First, it is examined whether a retrial object disappears in case of "special pardon which invalidates the effect of pronouncement of sentencing." Pronouncement of conviction consists of “(with proof of offense) conviction” and “(corresponding) pronouncement of sentencing.” It should be viewed that the essence of special pardon in terms of its nature as presidential administrative action affects the portion of the execution of sentencing, i.e., the portion of the pronouncement of sentencing. Adjudication on the substance belongs to the domain of the judiciary, and execution of sentencing belongs to the domain of the administration. Thus, if special pardon invalidates the portion of adjudication on substance beyond that of the execution of sentencing, it will seriously infringe on the principle of separation of rights. Therefore, even if special pardon which invalidates the effect of pronouncement of sentencing is given, it does not extinguish the object of retrial. Accordingly, the above Supreme Court decision should be overruled. Next, under the presumption that a retrial object exists even if special pardon which invalidates the effect of pronouncement of sentencing is given, I examine whether special pardon constitutes “pardon” under Article 326 subparag. 2 of the Criminal Procedure Act. In the Yokohama case (橫浜事件) of Japan, it is held that general pardon (大赦) constitutes the ground for exclusion from trial. However, in general, “pardon” under Article 326 subparag. 2 of the Criminal Procedure Act only refers to general pardon. It is difficult to view that special pardon is also included, In conclusion, a retrial should proceed for the adjudication on the substance, and judgment of exclusion from trial should not be rendered.