상습범 등 포괄일죄의 재심사건과 일사부재리효가 미치는 범위

Abstract

Issues have been brought up in regard to cases of inclusive crimes including habitual crimes, proceedings of which inadvertently give unfair advantages to criminals who ought to be subject to strong punishment in light of the likelihood of recidivism, despite the necessity with respect to the investigation of other crimes or the convenience of trial administration. For example, let's posit a case where there is a final judgement of conviction on some of the facts constituting the crime of habitual theft. In such a case, a belated discovery of the facts constituting a crime subject to stronger punishment, the occurrence of which precede the facts of the crime on which the final judgment had already been rendered, may unreasonably give rise to punishment vacuum due to the effect of double jeopardy of the already-finalized judgment of conviction. Based on the recognition of this problem, previous theories and case laws have struggled to find a sustainable alterative through diverse theoretical approaches. These alternatives can be broadly categorized into two types. First, a substantive law approach takes on the view of identifying habitual crime as plural crime, as opposed to inclusive crime. Under such a view, recidivism is not viewed as an indicator determining the number of crimes, apart from the question of whether it is justifiable to understand the recidivist nature as the requirement for an increase of penalty. In addition, whether a crime has the nature of habitual, business, or occupational crime is insufficient to deem each of the individual acts as constituting inclusive crime. For a crime to be determined as inclusive crime, it must meet the requirements of inclusive crime, which include: (a) from a subjective standpoint, continuity and consistency of criminal intent; and (b) from an objective standpoint, temporal and spatial association among each behavior along with similarity of behavioral model and the sameness of the legal interests infringed. According to this view, crimes other than those meeting the above requirements are deemed to constitute plural crime, under which the effect of double jeopardy on the final judgment of conviction on each of the individual facts does not extend to other facts. On the other hand, a procedural law approach attempts to narrow the scope of the double jeopardy (ne bis in idem) effect, by means of establishing temporal limits on the double jeopardy effect, and arguing for the adoptability of the simultaneous prosecution and ruling theory. In general judicial practice, the procedural law approach is adopted to address problems regarding habitual crimes. However, this methodology is theoretically criticized on the ground that there remains room for arbitrary judgment on the double jeopardy effect with absence of any clear criterion. The substantial law approach is also criticized for its limitation on the interpretation of actual law, and for being firmly rooted in the exiting case law apart from legislative discussion. There has been a considerable amount of discussion as to the issues relating to inclusive crime, such as habitual crime. This article attempts to add a fresh perspective to the habitual theft case recently appealed to the Supreme Court of the Republic of Korea.