재판의 확정력과 이중위험금지에 따른 일사부재리의 객관적 효력 범위에 관한 연구

Abstract

The prohibition of Double Jeopardy in Article 13(1) of the Constitution of the Republic of Korea is the effects originating from Res Judicata of final and conclusive judgements of criminal proceedings. In conjunction with Double Jeopardy of the Anglo-American law, the Article prescribes that the same offence should not be punished twice. However, under the lack of clear and articulated provisions in the Criminal Procedure Act, there are controversial views about permissible scope of the sameness of crime. On the decision criteria to acknowledge the same offence, the majority view is that the sameness of offence should be determined on the basis of the fact. This view permits a second time prosecution only when there are different incidents. While the court also decides the sameness of offence based upon the basic facts, it tends to limit the permissible scope of the same offence under the criteria of normative facts. So the court holds that the decision should be made not only just from social and pre-legal perspective but also from normative perspective. The court seems to be appropriate in the fact that it places more emphasis on realizing justice pursuant to substantive truth rather than protecting basic rights of defendant who might try to abuse defense rights in the final and conclusive judgment. However, the normative element adopted from precedents in deciding the sameness of basic facts lacks concrete and objective standard, which tends to lead into arbitrary judgements. Thus in conclusion, to rationally harmonize defendant's rights and protection of justice, it is necessary to standardize the decision rule about the sameness of offence, the core content of Double Jeopardy. Suggesting the marginal concept "concrete danger" in the first judgement, the paper asserts that the scope of effects of double jeopardy should be limited.