재심과 비상상고의 교차영역

Abstract

The retrial system is an emergency remedy procedure to relieve the accused and restore justice in cases where there is a mistake in fact in the existing final judgment. An emergency appeal is an emergency relief procedure that seeks to unify the interpretation and application of laws by correcting errors in the application of laws and regulations in existing final judgments and provides relief for the accused. At this time, in the case of 1) 'law violation due to misrecognition of facts', which is an issue located in the intersection of retrial and emergency appeal, can't the original judgment be corrected through a retrial as well as an emergency appeal? 2) Is it possible to request a retrial as well as an emergency appeal for misidentification of facts due to legal violation? That is the content of this study. This issue is related to the purpose and limitations of retrial and emergency appeal, and it is considered appropriate to the idea of the Criminal Procedure Act to have a corrective procedure in cases where a violation of the law due to a misrecognition of fact or a misrecognition of fact is significantly contrary to justice. In the process of legal argumentation, a legal conclusion is drawn by applying laws and regulations on the premise of facts. In the case of a general appeal case, for example, in the case of an indictment for murder, the defendant alleging negligent manslaughter is not an intentional murderer, but he misjudged the facts as a murderer and was convicted by applying the wrong legal principles and laws. will do for a reason In other words, the wrong interpretation and application of laws and statutes is a problem, but such wrong interpretation and application of laws and statutes presuppose wrong judgment of facts. As such, it is not easy to strictly distinguish between matters of fact and matters of law, and in many cases they are mixed. In the realm where retrial and emergency appeal intersect, the rational interpretation theory to harmonize the discovery of the substantive truth and procedural justice is the case where the cause of the misrecognition of fact was provided by a state agency - an investigative agency or a court - and as a result, a violation of the law I believe that the method of redressing the accused through emergency appeal as well as retrial should be allowed. In addition, from the viewpoint of the ideology of criminal procedure, in the case of a violation of the law of litigation - for example, a violation of the law that does not exclude the admissibility of evidence of illegal collection evidence - the defendant's relief through an emergency appeal as well as a retrial is allowed in the case of misunderstanding as a fact of guilt. I think it is reasonable. I think this interpretation theory is persuasive in that retrial and emergency appeal have a common purpose and function of restoring justice as well as relieving the accused. On the other hand, the recognition of guilt of a person who has received a final verdict of innocence in a procedure in which reflection on past history is an issue is possible in cases where unfavorable retrial is permitted, as in Germany. However, in our Criminal Procedure Act, retrial and emergency appeals are operated under the great principle of relief of unfair defendants. Specifically, the principle of prohibition of changing disadvantages under the Criminal Procedure Act, the principle of retrial of interests, and the provision of emergency appeal (proviso to Article 446, subparagraph 1 of the Criminal Procedure Act) that the original judgment is retried only when it is unfavorable to the accused, the result of historical reflection must necessarily be the result of legal reflection. It does not require that it be connected to. Criticism in the legal realm and condemnation in the social, political and historical realm do not always have to be the same. If the direction and target of both criticisms should be the same, it is no different than that the judge's normative judgment based on his free spirit and the legal sentiment should be the same. It is no different from the fact that the conclusion should be concluded by public opinion rather than the conclusion according to the rules of experience and logic purely based on the judge's free spirit. This is because the judge's legal judgment is not an infallible judgment that perfectly reveals all the truth, but a human judgment as a result of the judge's free spirit.