[논문] 상소제도론의 발전과 전망

• 영문명: The Prospect and Progress on the Criminal Appeal System
• 발행기관: 한국형사법학회
• 저자명: 천진호(Chun Jin-Ho)
• 간행물 정보: 『형사법연구』형사법연구 제22권, 312~342쪽, 전체 31쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.02.02

영문 초록

In this study, I looked into criminal appeal procedure and legislation history of appeal, reviewed on function and structure of a trial on an appeal case and an appeal to the Supreme court in relation to needs for restructuring of appeal, and analyzed revised regulations stated in a revised bill of the Ministry of Justice. First, it is very significant to increase the number of judicial officers, as the U.S. entrust the first hearing to one judge and make three judges reach an agreement for reinforcement of the function of criminal trials on an appeal case. In the case that this proposal is adopted, it is also needed to consider to expand the justice researcher system currently only at the Supreme Court. In addition, to remove speedy trial for a trial on an appeal case, to limit submission of new lawsuit data, and to make trials on an appeal case a pure post trial re-judging the right or wrong of the initial trial are all important. If a trial on an appeal case is converted into a pure post trial, then real trial is concentrated at the initial trial, and then as a trial on an appeal case proceeds focusing on legal judgement for distributed points in detail, unnecessary appeals could be reduced. Problems with current appeal system are caused by weakening of legal trial and insufficiency of a right relief. With recognition of the problems, what could be discussed includes placement of an appeal trial department under a high court of justice, so as to have them responsible for the third hearing of real trial, ‘the alternative fourth hearing system’ which enable to choose insubordination procedures by making the Supreme Court a pure legal trial, ‘the alternative system of Supreme Court’ that allow the collegiate court to make a judgement, which consists of a particular number of judges including a justice of the Supreme Court, for insignificant cases while allowing the representative council which consists of only justice of the Supreme Court to make a judgement for significant cases, ‘the restraint system of final appeal’s reason’ which reduces reasons for an appeal regulated by the current Criminal Procedure Clause 383 as a way of attempting legal trial of the Supreme Court, maintaining trial construction or the composition of the Supreme Court under the current structure, ‘omission of statement of ground,’ as practically a solution identical to an appeal permission, except for cases corresponding to the existing permission on the final appeal’s reason in the cases that an appeal is rejected, adoption of a procedure to omit statement of ground, against judgement of the Supreme Court which excludes the adjudication’s omission from reasons for re-trial in the case of omission of ground’s statement. Nonetheless, limited adoption of actual punishment of punish for insufficient case that lacks appropriate reasons before a warrant of arrest is issued as in the case that a person who received summary procedure of fine execute workhouse. Also in relation to the system of reference’s statement, for the prediction cases of a heated discussion on legal principles, socially very controversial events, events that affects fate of a country or a policy, it is worth hearing experts' opinions, so it is appropriate to have a legal background for new legislation. The Supreme Court could gather important information through persons indirectly related to significant events, but not the persons directly involved, raise the level of justice through hearing procedures from relevant government departments or civil organizations, make socially accepted judgements in the process to constantly improve the pitfalls of the structure of lawsuits.

목차

Ⅰ. 형사사법시스템에 대한 최근의 논의과정

Ⅱ. 상소절차 및 상소제도의 입법연혁

Ⅲ. 항소심의 기능과 구조

Ⅳ. 상고심의 기능과 구조

Ⅴ. 법무부 개정안에 대한 검토

Abstract