일부상소와 관련된 일본의 공방대상론의 현황과 논의

Abstract

The theory about the object of argument in litigation is a legal principle formed by Japanese Supreme Court decisions. When there is a partial conviction and non-conviction in a single crime upon litigation act and only the defendant appealed, the whole charges will be moved and continued. However, the non-conviction that was not appealed by the prosecutor will be excluded from the object of argument in litigation and shall be ruled out from the appellate court’s review. Considering that the Supreme Court of Korea seems to have adopted the theory about the object of argument in litigation, it would be meaningful to consider discussions and precedents in Japan regarding the theory about the object of argument in litigation when looking into appeal against part of decision and scope of appellate court. The theoretical basis of the theory about the object of argument in litigation is that in the view point of adversarial litigation system and ex post facto review based appeal system, the appellate court’s ex officio investigation should be limited. In principle, the scope of decision by appellate court should be limited to reasons mentioned in the reason for appeal. Ex officio investigation should be used complementally and when ex officio investigation is conducted, it should be exercised to support defendant. Therefore, appellate court should not conduct ex officio investigation when it is most likely that prosecution is renounced. The theory about the object of argument in litigation can be adopted when prosecutor renounces prosecution on the non-conviction parts that he did not appealed. To construe that prosecutor renounced prosecution, conviction part and non-conviction part in a single crime can coexist and prosecutor may have discretion on facts charged. In specific, even in the case of inclusive crime, single crime upon punishment and simple single crime, when primary facts charged and secondary facts charged can coexist or lesser included offense is recognized then the theory about the object of argument in litigation can be adopted. If one action in simple single crime is differently recognized and when primary facts charged and secondary facts charged cannot coexist, the theory about the object of argument in litigation cannot be adopted. Such theoretical basis and scope on the theory about the object of argument in litigation will not defer in Korea which is recognized by court decisions. Korea and Japan is still creating the standard of adopting the theory about the object of argument in litigation. Hope for a deeper discussion will follow on the theory about the object of argument in litigation through additional court decisions and by referring to overseas discussions such as Japan.