法院의 ‘公訴狀變更 要求’에 관한 硏究

Abstract

Article 298(2) of Criminal Procedure Act stipulates the ‘Request for Amendments to Bill of Indictment’ of the Court in accordance with “Where the court deems it reasonable in view of trial process, it shall request for the addition or change of the facts charged or applicable provisions of Acts.” Since this regulation states “The court …, it shall request …”, it is clear that the Request for Amendments to Bill of Indictment is the obligation of the court. However, the theory of explanation as such is the minority theory, the majority theory and judicial precedent of Supreme Court explains as discretion rather than the obligation of the court. I conducted this research to find the way to understand diverse issues that are being discussed about this system, starting from a question about this matter. In order to accomplish the above objective, I firstly obtained a general view of the existing theories and precedents on the reason for the existence of Request for Amendments to Bill of Indictment, and presented the viewpoint of me that reviewed and criticized the existing opinions on the reason for the existence of this system which is the cause of diverse arguments(Ⅱ). After that I presented my opinions on the diverse issues of this system based on that view(Ⅲ) and completed the research[Ⅳ]. In this study, I argued that the main cause of various problems about the indictment requirement system asserts that the majority theory and precedent should be found in the ‘viewpoint of the adversarial system’, restrains the court from judging not guilty to a person who has clearly committed a crime, enables prosecutor to modify the indictment with possible contents for conviction and understands that the reason for the existence is for the conviction, understands that the minority opinion had attempted to solve the problem by presenting alternative ex–officio principle interpretation without basic principle of the criminal procedure act, suggests viewpoints that the reason for the existence of this system is ‘to restrain the rejection of public prosecution and acquittal of prosecution of accused case and to enable substantive trial’ after reviewing and criticizing the two opinions, and suggests new opinion regarding various issues of the system based on above.