법원의 공소장변경요구제도에 대한 비판적 고찰

Abstract

Though Indictment Modification System is an element of adversary system, Indictment ModificationRequirement System is an element of inquisitional system prepared to acknowledge authoritative intervention ofthe court in order to supplement Indictment Modification System. To discuss the legal nature of the system, itshould be decided by Indictment Modification Requirement System itself, and unlike existing theories orprecedents, Indictment Modification Requirement should be considered as a right and duty of the court at thesame time through reviewing revision object of the Criminal Procedure Law which introduced the system, andcomparing the regulations of Japanese Criminal Procedure Law. In the view of Indictment Modification Requirement System as a right and duty of the court, if the courtrequired for modification of an indictment within the recognition range of criminal fact and identity, therequired criminal fact becomes the substantive subject of judgment, and the defense right of the accused isconsidered to be exercised; therefore, considering if there is a substantive disadvantage or not in exercisingdefense right of the accused, it is possible for the court to make a decision on the criminal fact that requiredmodification of indictment. In respect of adversary system, as it is true that indictment modification requirement of court is an exceptionof adversary system, it is necessary to be circumspect in indictment modification requirement of court respectingthe chance of application for indictment modification of prosecutor during the trial examination; however, todeclare innocent on the criminal fact in a situation of no application for indictment modification, even if thereis admissible criminal fact, with a passive demeanor that regards indictment modification requirement asdiscretion of court, gives the accused an unfair profit, and results in against finding of substantial truth. Thus, it is expected to contribute the requirement system to perform appropriate role in accordance with thepurpose of criminal suit, which is finding substantial truth according to reasonable procedure by reviewing thelegal nature and effect of Indictment Modification Requirement System of court critically.