사망한 피고인에 대한 재판과 비상상고의 이유

• 영문명: The Trial against Dead Defendant and Reasons for Extraordinary Appeal
• 발행기관: 한국형사법학회
• 저자명: 송진경(Song, Jin-Kyung)
• 간행물 정보: 『형사법연구』형사법연구 제20권 제4호, 427~444쪽, 전체 18쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.01.27

영문 초록

Article 441 on reasons for extraordinary appeal in criminal procedure act states: “When it has been discovered after a judgment has become binding that the trial or judgment of the case was in violation of Acts and subordinate statutes, the Prosecutor General may lodge an extraordinary appeal in the Supreme Court.” Extraordinary appeal is for the purpose of correcting violation of Acts in a final decision. The Supreme Court has held that defendant died before giving the original judgment is a fact. Mistake of fact is a reason for reopening of procedure. Right here, we have a problem what does the fact mean mistake of fact. Criminal trial has dealt with not in every act, but act to constituting a crime. In addition, article 420 stipulates on reasons for reopening of procedure for examples, “When documentary evidence or articles of evidence, on which the original judgment was based, have been proved by another finally binding judgment to have been forged or altered”, “When clear evidence has been newly discovered that in regard to a person pronounced guilty, a judgment of ‘not guilty’ or acquittal should be pronounced, or in the case of a person condemned, a judgment of remission of a penalty should be pronounced, or a lighter offense than that found by the original judgment should be given”, etc. Hence we need to interpret the fact in mistake of fact relates to crime. The fact that defendant died is irrelevant to facts constituting a crime. Nevertheless, the Supreme Court has understood the fact that defendant died is included in a reason for reopening of procedure. All persons shall be subjects of rights and duties throughout their lives. If a defendant dies, he shall loss capacity as party. The prosecution against dead defendant does not satisfy a formal requirement to criminal trial. The criminal trial against dead defendant must be terminated in the form of dismissal of a prosecution. Then again, if a dead defendant is put on trial, this case is void by reason of its having been contrary to the provisions of Acts. Therefore, the Supreme Court should have concluded that the trial against dead defendant is a reason for extraordinary appeal.

목차

Ⅰ. 문제의 제기

Ⅱ. 비상상고 제도의 목적과 비상상고의 이유의 관련성에 대한 비판적 검토

Ⅲ. ‘우리 입법자가 예정한 재심과의 역할 분담에 비추어 본’ 비상상고의 규율대상

Ⅳ. ‘피고인의 사망’의 본질과 ‘사망한 피고인에 대한 재판’의 구제수단

Ⅴ. 대법원의 태도변경 방식에 대한 비판적 검토

Ⅵ. 결 론

키워드

비상상고 소송조건 재심 피고인의 사망 extraordinary appeal requirements for criminal procedure retrial the death of the defendant