국가불법 입증의 실효성 제고를 위한 소고

Abstract

South Korea has been liquidating state illegalities for nearly 40 years, dating back to 1987. During this time, various individual past liquidation laws have been enacted, and in the early 2000s, a comprehensive past liquidation law was enacted to provide for a unified and systematic approach to the past liquidations. Despite these legislative achievements, however, structural, institutional, and interpretive problems make it difficult to actually prove state illegality: the state illegality is covered up, evidence of harm is lost due to the passage of time, or evidence is manipulated or destroyed by the state institutions of the state illegality. In addition, the findings of the Truth and Reconciliation Organization are denied credibility, and the retrial system is overly demanding in terms of object, reason, and procedure, which hinders the proving of illegalities. Although a special retrial system has been introduced, it has been applied to only a few cases, leading to equity issues, and it is difficult for victims who are vulnerable to illegality to prove the causal relationship between state illegality and harm. This dissertation proposes alternatives to improve the effectiveness of proving state illegality, including strengthening the evidentiary power of the findings of the Truth and Reconciliation Organization, relaxing the hermeneutic and legislative rules on proving state illegality in the object, cause, and procedure sections of the current the retrial system, expanding the special retrial system, and relaxing the causal relationship between state illegality and harm.