오판구제수단으로서의 형사재심의 재인식

Abstract

Retrial is a very important legal proceeding because misjudgment may result in unacceptable denial of basic rights by punishing the innocent and may harm public trust on judicial rulings. However, unfortunately there have been not much discussions and studies concerning retrial in theoretical aspect as well as in practical aspect. In order to protect the rights of a petitioner for retrial, the retrial proceeding should be carried out under the adversary party system by regarding the petitioner as a party. Under the adversary party system, the petitioner should be provided with a chance to make his or her arguments and to participate in fact finding process. And then, it will be proper for the court to make directions or certain orders to parties if there are problems with reasons of retrial request or documentary evidences. The purpose of retrial is to provide a remedy to the innocent, and the due process clause of the Constitution (with a right to impartial trial and the principle against double jeopardy) supports the principle of retrial. Regarding requirement of new evidence in retrial, the question of whether it is right to require new evidence in adversary party system relates to the question of whether to apply principle of promissory estoppel in retrial request. The question also depends on how to compromise in case there is conflict between the principle of adversary party system and principle of passive truth finding. On the view point of due process of law, it will be proper to put the principle of truth finding before the principle of adversary party system, and therefore, it will be proper to take retrial request even by disguised surrendered person as a valid one. Regarding requirement of clear evidence in retrial, the evidence must be regarded as clear if there is a probability that the final judgment may be overruled by bringing reasonable doubt on fact finding of the judgment using the suggested evidence. In order to provide remedy to every retrial request that may result in 'not guilty' verdict in the end, the principle of 'in dubio pro reo' should be applied in the retrial request hearing stage, and a retrial should be granted if there is a reasonable doubt that the person might be innocent. Understanding of retrial should start from the fact that there may be misjudgment even in the highest court, and retrial is a necessary part of today's legal proceeding.