국민참여재판 항소심에서의 공소장변경과 공소권남용의 가능성

Abstract

Prosecutors frequently appeal and amend charges at an appellate level after citizen participatory trial courts acquit the accused even though the trial court adopts the unanimous verdict. The amendment of charges at the appellate level defeats the purpose of introducing the citizen participatory trial system since it inevitably annuls the trial court decision, which is quite concerning. Since the indictment authority includes the application for amendment of charges by prosecutors, this paper explores the possibility that the amendment of charges in a citizen participatory trial shall constitute the misuse or abuse of the indictment authority. Previous studies have suggested restricting the amendment of charges at the appellate level or a different interpretation of the structure of the appellate trial. However, few studies have shown the possibility of indictment authority misuse or abuse. This paper is based on the current case laws and expands the realm of misuse or abuse of indictment authority from indictment to the amendment of charges. First, this paper analyses case laws regarding misuse or abuse of indictment authority. Second, the restriction on the amendment of charges in general appellate courts will be examined. Finally, this paper lists a comprehensive ideology for the amendment of charges in the citizen participatory trial system. The citizen participatory trial system pursues the democratic validity and reliability of judicature. The reasonable interpretation of the structure of the appellate court and indictment authority will invigorate the citizen participatory trial system.