형사절차상 심판대상과 일사부재리효력의 관계

Abstract

How to define the range of object of judgement in criminal procedure is a important factor to secure the fairness of national punishment. So, the range of object of judgement should be determined to consider both of the defendant's interests and criminal justice. In general, enlarging the extent of object of judgement is beneficial for criminal justice agencies because it can be helpful to deal with cases more efficiently by managing them one time, even though there are a lot of burden to cope with all of facts charged. On the contrary, it is profitable for defendants and disadvantageous for criminal justice agencies to decrease the range of object of judgement. In korean criminal procedure, the extent of object of judgement has been determined where two tensional ideas, defendant's interests and justice, are balanced. So, it is construed to be required that the range of object of judgement be coincided with the range of the principle of not reopening a settled case to balance criminal justice and defendant's interests. Unlike japan and German, Korean criminal procedure have provisions both of the principle of indivisibility of indictment and the modification of indictment. In addition, the limit of it is confined within the range of sameness with the facts charged. The intent that allows the modification of indictment which is possible within the same meaning with the facts charged is to achieve the ideal agreement between the range of object of judgement and the range of effect of trial. Namely, all the range of object of judgement, the range of modification of indictment, the range of effect of trial and the range of the principle of not reopening a settled case are the same. From this, we can imagine the legislator's considerate determination to balance between securing the defendant's interest and realizing justice.