형사소송법 제420조 제2호의 재조명 - 해석론과 운영상 개선방안을 중심으로 - (Review of Article 420 Subparagraph 2 of the Criminal Procedure Act - Mostly Interpretation and operational improvement -)

서지정보

· 발행기관 : 한양대학교 법학연구소
· 수록지 정보 : 법학논총 / 31권 / 4호 / 73 ~ 90페이지
· 저자명 : 김도윤

초록

When there is an error with a Final and Conclusive Judgment, the oppositionbetween realization of National Jurisdiction and the Freedom of Individual is at itsmaximum state. To resolve this and to ensure trust in jurisdiction, the existing lawhas Retrial Procedure. Request for Retrial is possible when testimonies, expertopinions, interpretations or translations on which the Original Judgment wasbased, have been proved to be false by a Final and Conclusive Judgment. CivilProcedures and various legal examples from other countries also allow retrial whenFalse Statements and such are involved; this is not only because a doubt onmistake in determining relevant facts in a Final and Conclusive Judgment is aheavy defect as a False Prosecution for the Defendant, but also because it harmsthe reliability of Legal Judgments. However, there are not enough researchesdespite the importance of the issue.
To proceed with a Retrial according to Article 420 Subparagraph 2, testimony,expert opinion, interpretation or translation must be used as evidence in theJudgment for Retrial. This means it must be explicit in writing on the WrittenJudgment as the Gist of the Evidence, but testimonies must not rely on formalitiessuch as legal qualification as a witness, and since false interpretation does not getrecorded on the Written Judgment, the decision must be made comprehensively byincluding trial records and facts acknowledged by a Final and Conclusive Judgmentthat reveals the interpretation is false.
‘False’ represents testimony and such are against objective truth. Final andConclusive Judgment proving such falsity is not required to be Verdict of Guilty as in Germany, which has substantive enactment; it is enough to understand thatthere was an error in the Judgment for Retrial; this is the goal of Retrial. WhenFinal and Conclusive Judgment cannot be obtained from the first place, the errorcan be proven with a qualification that can substitute the Final and ConclusiveJudgment (Article 422 of the Criminal Procedure Act). When it is not enough toqualify the requirements as Cause for Retrial listed in Subparagraph 2, a decisionto proceed with Retrial should be urged with preparatory means such as arguingforgery or falsification of documents, or discovery of new evidences.
Operation until the present day has been following formal standards such asRequisite for Requirements for Qualification as Witness or Perjury, but it should bein the direction based on the fact that errors disadvantageous to the Defendanthave been involved in the Judgment for Retrial. Therefore, the Defendant’s burdenson legal procedures based on formalities must be reduced, and judicial precedentsthat requires to prove Causes for Retrial by only the Verdict of Guilty by a Finaland Conclusive Judgment. The Court must elucidate and induce preparatoryarguments other than the ones presented by the person asking for Retrial when atCourt Hearings, and refrain from blindly following Japanese analytic theories, inwhich the legal reality is significantly different from the one in Korea. Whenproviding legal advices and such, enough assistance should be given in cases thathave rooms to proceed with Retrial; and the attorneys must be able to do their bestin such cases. An institutional improvement is necessary to let attorneys topersuade their clients to utilize other means of relief or urge for thoroughpreparations when there is no possibility for proceeding Retrial.

영어초록

When there is an error with a Final and Conclusive Judgment, the oppositionbetween realization of National Jurisdiction and the Freedom of Individual is at itsmaximum state. To resolve this and to ensure trust in jurisdiction, the existing lawhas Retrial Procedure. Request for Retrial is possible when testimonies, expertopinions, interpretations or translations on which the Original Judgment wasbased, have been proved to be false by a Final and Conclusive Judgment. CivilProcedures and various legal examples from other countries also allow retrial whenFalse Statements and such are involved; this is not only because a doubt onmistake in determining relevant facts in a Final and Conclusive Judgment is aheavy defect as a False Prosecution for the Defendant, but also because it harmsthe reliability of Legal Judgments. However, there are not enough researchesdespite the importance of the issue.
To proceed with a Retrial according to Article 420 Subparagraph 2, testimony,expert opinion, interpretation or translation must be used as evidence in theJudgment for Retrial. This means it must be explicit in writing on the WrittenJudgment as the Gist of the Evidence, but testimonies must not rely on formalitiessuch as legal qualification as a witness, and since false interpretation does not getrecorded on the Written Judgment, the decision must be made comprehensively byincluding trial records and facts acknowledged by a Final and Conclusive Judgmentthat reveals the interpretation is false.
‘False’ represents testimony and such are against objective truth. Final andConclusive Judgment proving such falsity is not required to be Verdict of Guilty as in Germany, which has substantive enactment; it is enough to understand thatthere was an error in the Judgment for Retrial; this is the goal of Retrial. WhenFinal and Conclusive Judgment cannot be obtained from the first place, the errorcan be proven with a qualification that can substitute the Final and ConclusiveJudgment (Article 422 of the Criminal Procedure Act). When it is not enough toqualify the requirements as Cause for Retrial listed in Subparagraph 2, a decisionto proceed with Retrial should be urged with preparatory means such as arguingforgery or falsification of documents, or discovery of new evidences.
Operation until the present day has been following formal standards such asRequisite for Requirements for Qualification as Witness or Perjury, but it should bein the direction based on the fact that errors disadvantageous to the Defendanthave been involved in the Judgment for Retrial. Therefore, the Defendant’s burdenson legal procedures based on formalities must be reduced, and judicial precedentsthat requires to prove Causes for Retrial by only the Verdict of Guilty by a Finaland Conclusive Judgment. The Court must elucidate and induce preparatoryarguments other than the ones presented by the person asking for Retrial when atCourt Hearings, and refrain from blindly following Japanese analytic theories, inwhich the legal reality is significantly different from the one in Korea. Whenproviding legal advices and such, enough assistance should be given in cases thathave rooms to proceed with Retrial; and the attorneys must be able to do their bestin such cases. An institutional improvement is necessary to let attorneys topersuade their clients to utilize other means of relief or urge for thoroughpreparations when there is no possibility for proceeding Retrial.

참고자료

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