공소사실의 동일성과 규범적 요소

Abstract

There were many views on the ‘identity’ of the prosecution facts, but the basic factual theory was the conventional conventional wisdom and precedent. However, in the Supreme Court's decision on March 22, 1994, the court ruled that the normative element should be considered in the basic factual theory. In other words, it was said that whether the basic facts are the same, in addition to whether the natural and social facts or the actions of the accused are the same, the normative element constitutes part of the actual content of the basic factual identity. The normative element of the precedent was the content of the crime facts such as the means, method, the other party, and the nature of the crime such as the sun and the damage of the act, and it was said that this should be considered in the judgment of 'identity'. There is no problem with the court presenting these standards. However, it generally does not provide a valid standard that can be applied as to what extent the content of the crime, the sun of the action, and the nature of the crime must be consistent to determine that the facts are the same. Although the precedent has secured specific validity for individual cases in consideration of normative factors, it does not provide predictable general standards. In similar cases, even the Supreme Court changed its conclusion by simply suggesting that normative factors should be considered without any reason for each difference. As a result of failing to present general standards and guaranteeing legal stability, the offender does not have predictability and the court's judgment is at risk of flowing arbitrarily. In order to harmonize legal stability and specific validity, the government should legislate to consistently apply the principle of basic factual identity to criminal penalties caused by simple procedures such as notification of payment of fines or summary judgment for relatively light crimes such as the Misdemeanor Penalty Act or the Road Traffic Act. When an actor who commits a serious crime is punished for a minor offense by a simple procedure, the trust that punishment has been made for all his actions will be weak. In this case, concrete validity rather than trust of the actor is emphasized so that serious crimes can be prosecuted again, and if the trial is confirmed through a formal trial, the trust of the actor is protected and legislated that the judgment takes effect within the same range and is not punished repeatedly. I think such legislation is a way to secure legal stability and specific validity without undermining the basic spirit of the principle of prohibiting double punishment guaranteed by the Constitution.