공소장일본주의의 실효성 확보를 위한 고찰

Abstract

Article 254 paragraphs (1) and (3) of the Criminal Procedure Act providethat the institution of public prosecution shall be made by filling a writtenindictment with a competent court and the written indictment shall containthe names of the defendants and other matters by which the defendants can beidentified, the name of the crime, the facts constituting the crime charged, andthe applicable provisions of Acts. Section 118 paragraph (2) of the Regulationson Criminal Procedure provides that documents or any other articles, exceptfor the documents provided for in section 118 paragraph (1) above, which maycause the court to create presupposition on the case shall not be attached to andtheir contents shall not be quoted in an indictment. And, criminal procedureresearchers and criminal courts consider that it is forbidden to add surplusagewhich may cause the court to create presupposition on the case to an indictment. All of this has been called the principle of written indictment only. But the principle of written indictment only seemed to lack effectiveness. This paper seeks to verify the need to secure the effectiveness and to findthe effectiveness secure method. The effectiveness of the principle of written indictment only should be secured in order to realize the principle of exclusionof presupposition, trial centralization and no evidence no trial principle. For this,the principle must be expressly stipulated in the text of the Criminal ProcedureAct and it's judgment procedure and violation effect must be established clearlyand reasonably through legislation and interpretation.