상습범의 죄수와 소송법적 효과

Abstract

Supreme Court and the great part of the jurists assert that the habitual crime is a comprehensive criminal act. By the way, the problem arises from their opinion that, when the prosecutor prosecutes an offender for a part of the offenses to constitute the habitual crime and the decision on that case is irrevocable, the rest committed to the time extent of the material legal effect(materielle Rechtskraft) cannot be punished because of the material legal effect. So some jurists assert that the habitual crime is not one criminal act. But considering the purpose of legislation and the meaning of the text to provide the aggravated punishment of the habitual crime, it is proper to consider the habitual crime as a comprehensive criminal act. The gap of punishment caused by considering the habitual crime as a comprehensive criminal act must be made up for within the scope of the right construction. Therefore, when it is proved after the prosecution that the offenses constitute a habitual crime, the problem can be solved by canceling only summary order request under summary procedure and modifying the written arraignment under procedure in a public trial. When the decision on that case is irrevocable, that case is not to be reopened in the identity of the criminal fact because the material legal effect reaches the extent of the identity of the criminal fact. In order to solve the problem did Majority Opinion in Supreme Court Full Bench Decision 2001Do3206 Delivered on September 16, 2004 choose the method not to recognize the identity of criminal fact in the basis crime and in the habitual crime. But in the construction of the Korea Law to provide the principles of indivisible prosecution and ne bis in idem about the criminal fact is it doubtful whether the extent of the material legal effect can change according to the name of a crime even if there is a same criminal fact.