공소사실의 동일성 판단기준으로서의 규범적 요소

Abstract

Since Korean supreme court decision en banc (Case No. 93do2080 decided on March 22th, 1994) declared that a normative factor along with an identity of basic facts charged should be taken into consideration, most of court cases have held on to this standpoint of the supreme court. If a normative factor is taken into consideration to determine identity of facts charged, the scope of an identity will be more reduced, than that based on pure basic facts charged. Therefore, as intended by the court decision, a person who was punished for a minor offense (the crime of taking stolen goods) can be punished once again for a serious crime. Like this, If a normative factor was considered, it means that the problematic situation of an arbitrary exercise of a state power on criminal punishment can be overcome, which is otherwise impossible because of prohibition against double jeopardy. But this approach may bring another problem that the constitutional right to prohibition of double jeopardy will be violated because this approach may deny the identity of the facts closely related to and in a tight relation with facts charged and make it possible to punish the accused twice. This can not be justified if it turns back on legal stability and expected pay-off but leads to achievement of criminal justice or accomplishment of state power on criminal sanction. Also, it places burden on the defendant from a justice system that reveals its own limits by proving guilt at a time and damages the principles of criminal law. Moreover, the expansion of punishment by introducing the view of a normative factor may encourage arbitrary prosecution. Even though the need of introducing a view of normative factor is acknowledged, a normative factor determined through the consideration of a characteristics of an act, a legal interest violated, nature of crime, etc. does not have clear standards to decide a normative alikeness of facts charged. It has a risk to cause inconsistent court decisions. As we have already seen before, an identity of charges is denied even when there is no normative dissimilarities of conclusions of particular cases. In contrast, an identity of charges is approved even in the case that serious differences of nature of crimes were found. It shows confusions and contradictions, in that an identity of facts charged is approved even between the cases where there appear analogous facts but the same applicable provision. This phenomenon obviously violates legal stability of people in criminal process. Therefore, taking account of many problems raised above, it is not reasonable to take into consideration a normative factor to determine an identity of facts charged because it may get worse-off rather than better-off.