2020년 형사법분야 대법원 주요판례와 평석

Abstract

Repetitive tendency in several judicial precedents, where conduct comprising a breach for performance of contractual obligation related to transfer of a real right was deemed not to be constituted as a breach of trust, or a precedent, in which a meaning of ‘deceptive scheme’ in Korean Criminal Act, Article 302(Sexual Intercourse with Minor, etc.) was interpreted in an extensive manner compared to existing precedents, has been concluded corresponding with the needs of current society. On contrast, precedent that extensively interpreted ‘openly in public made libel and slander’ - one of the prerequisite to establish defamation - by means of possibility of propagation stands its ground despite all the criticism. According to court's opinion, an amendment of an indictment ought to be denied subject to a count that surpasses the range of the unity and identity of count(criminal facts subject to judgement). Such opinion could be possibly seen as if it confuses between the necessity and acceptability of amendment to an indictment. It is not reasonable to deploy argument by presenting the grounds that a defendant or a defense attorney overlooked or did not rebut rather accept, while pointing out certain occasion when the exclusionary rule of the illegally obtained evidence could not be strictly applied. When both employee and employer are indicted due to joint penalty provision, the protocol of examination of a criminal suspect which was written regardless of whether they are joint defendant(accomplices) or not, shall not be used as an evidence in another defendant's trial proceedings without recognition of the defendant's. The latest precedent showed us that ‘intermediate’ prison sentence between long-term and short-term of indeterminate sentence could be given to the defendant as a standard for maintaining the principle of the prohibition of disadvantageous alteration, when the defendant received an indeterminate sentence in lower court(court trial) became adult eligible for determinate sentence. However, it does not seem to provide a methodologically significant judicial reasoning.