형사 항소심의 바람직한 운용방안

Abstract

In South Korea's criminal procedure law, the criminal appellate court, unlike the supreme court, shares the nature of a trial court, just like the first instance. Therefore, a party dissatisfied with the first-instance judgment appeals to the appellate court, a higher court, where the scope of consideration includes reasons stated in the appeal, such as factual errors, improper sentencing, legal misinterpretations, among others, which may influence the first-instance verdict. Considering the legislative history of South Korea's criminal procedure law and the original purpose of the appellate court, it is reasonable to view the appellate court as having, in principle, a structure similar to a post decision review with certain limitations to serve the efficiency of litigation. In practical terms of criminal procedure, the appellate court allows the prosecution or the defendant to submit new evidence, change the indictment, and reflect circumstances that occurred until the conclusion of the appellate trial in the appellate court's judgment. Emphasizing only the post decision review aspects of the appellate court may lead to concerns that a party receiving an incorrect judgment or facing disadvantages in the first instance might miss the opportunity to rectify the situation. Furthermore, if the appellate court fails to function as a higher court by thoroughly examining the results of the first-instance evidence or judgment and merely reviews the essentials, the purpose of introducing the Three-Tier Trial System could be undermined. Therefore, at least for cases where the defendant disputes the charges, allowing a similar evidence examination as in the first instance and providing sufficient opportunities for defense during the trial process is considered desirable.