형사사건에 대한 상고기각 결정과 효력발생시기 - 특히 상고이유서 미제출의 경우 -

Abstract

Having the optimum goal of substantive verism, the Criminal Litigation Law states that even if the appellant did not properly claim the grounds in the final appeal, once a Final Appeal is filed, the Court of Law has the obligation to pursue the substantive truth, as well as the obligation to objectively judge issues unclaimed by the appellant and to dismiss the appeal in the form of a ‘judgment’ in order to provide, at least, a sufficient mental guarantee. It is improper for the Supreme Court to broadly interpret the grounds of the Final Appeal in order to overcome workload and weakened function of legal authority or to arbitrarily reduce the number of cases by the dismissal of the appeal. Ultimately, it is proper to pursue an institution in the direction of optimally guaranteeing the nation’s right to request judgments with sufficient legislative supplementation of institutional tools, such as installing a Department of Appeal in the High Court and increasing the number of judges at the Supreme Court. In this regard, Article 380 Clause 2 of the Criminal Litigation Law recently amended to allow dismissal of appeal simply with a judgment requires reconsideration due to the high possibility of violating the nation’s right to a serious judgment. Of course, if a dismissal of appeal on a Final Appeal is proceeded in the form of a ‘judgment,’ the final decision is made upon declaration, thus, the appellant would, at least, be released from the current arguments on the decision on a sentence.