외국에서 무죄판결을 받고 석방되기까지 당한 미결구금에 대해 형법 제7조의 적용 또는 유추적용 허용 여부

Abstract

In the subject case, the defendant, who was detained after being charged with committing murder in the Philippines but released after a Philippine court rendered a not-guilty verdict, was prosecuted again in a Korean court for the same crime. The key issue was whether the criminal defendant could be granted relief by counting either the whole or partial number of days detained pending trial abroad toward the sentence to be declared in Korea through application of Article 7 of the Criminal Act. The presiding justices all agreed that Article 7 could not be literally construed as applicable to pre-trial detention, but the justices were divided on whether analogical application should be allowed. According to the Majority Opinion of the subject case: (a) the exercise of penal authority in Korea and the criminal procedure of a foreign country, such as pre-trial detention prior to being released upon acquittal, were two separate issues; (b) a detainee held abroad could seek relief through the relevant country’s criminal compensation system that provides monetary compensation equivalent to the period of detention; (c) furthermore, inasmuch as the purpose of pre-trial detention in a criminal procedure, method of execution of pre-trial detention and treatment of detainees, legal treatment of pre-trial detention, etc. vary by country; (d) the nature and extent of deprivation of personal liberty experienced by a criminal defendant due to being detained pending trial abroad could not be readily deemed as either identical or similar to the impact of pre-trial detention or sentence executed in Korea, and thus, deeming the pre-trial detention executed abroad to be the same as “the pre-trial detention mandatorily included in the principal sentence” under Article 57(1) of the Criminal Act was difficult; and, accordingly, (e) the number of days detained abroad should not be counted toward the sentence to be declared in Korea through application of Article 7 of the Criminal Act by analogy. The Majority Opinion went on to state that, a judge could sufficiently mitigate the risk of disadvantages associated with pre-trial detention abroad by factoring in various circumstances related to sentencing along with the degree of consistency between the fact that served as the cause of pre-trial detention and the criminal charge, period of pre-trial detention, and extenuating circumstance behind the defendant having been detained pending trial abroad. However, the dissenting justices argued that: (a) assuming pre-trial detention executed abroad and sentence executed abroad were substantially identical, the legislative purpose of Article 7 of the Criminal Act should be sufficiently taken into consideration, that is, protecting a criminal defendant’s personal liberty to the fullest by mitigating the risk of inordinate punishment of the defendant facing double punishment at home and abroad; and (b) associating pre-trial detention executed abroad with sentence execution rather than sentencing ground through analogical application of Article 7 of the Criminal Act would be consistent with our current criminal legal system, the constitutional spirit of human rights protection, as well as the Constitutional Court’s decision of unconstitutionality regarding Article 7 of the former Criminal Act which resulted in said Article being revised to better safeguard the personal liberty of those held in pre-trial detention abroad. The significance of the subject case lies in the fact that the Supreme Court rendered a decision shortly after Article 7 of the former Criminal Act was revised to better protect a criminal defendant’s rights, not to mention, amidst heightened concerns regarding physical detention following the unconstitutionality decision supra. In particular, the logical reasoning of the Majority Opinion and the Dissenting Opinion was reviewed from a broad legal aspect by taking into account: (i) the legislative purpose of Article 7 of the Criminal Act with respect to analogical application; (ii) the relationship between sentence execution and pre-trial detention; (iii) the meaning of counting the number of days detained pending trial toward the principal sentence; (iv) the system of granting relief for a criminal detainee; and (v) the purpose of the mandatory inclusion principle related to the period of pre-trial detention abroad. In short, the subject case was the first-ever decision in which the Supreme Court provided a detailed interpretative point of view on whether analogical application of Article 7 of the Criminal Act should be permissible toward pre-trial detention executed abroad.