특별사면과 재심

• 발행기관: 한국형사정책학회
• 저자명: 권창국
• 간행물 정보: 『형사정책』刑事政策 第27卷 第2號, 191~213쪽, 전체 23쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2015.08.30

영문 초록

Recently, the supreme court of Korea modified existing case law which can not permit retrial of the cases specially pardoned that extinguished effect of conviction, because there is no final judgement of guilty as the object of retrial. furthermore, unlike the general pardon case that extinguished the right of accusation, the retrial court has to close the case by judgement of guilt or not, not by acquittal.in the view that in the case specially pardoned that extinguish effect of conviction, retrial can not be permitted, the judgement of guilty has a part for decision in relation to the facts constituting crime and a part of sentence in relation to punitive action, and these parts can not be divisible. so if the effect of sentencing by special pardon, the effect of other part(guilty decision about the facts constituting crime) is to be extinguished, too. therefore, eventually the object case for retrial(irrevocable judgement of guilt) as a whole can not exist. this view is the basic logic in the past Japanese lower court case law, and the existing case law of supreme court of Korea also present the conclusion,not permitting retial about the cases specially pardoned that the effect of conviction is to be extinguished, based on above Japanese case law and logic. but the effect of special pardon is restricted to the extinguishing effect of sentencing in future, so the fact and historical effect that the accused had been guilty is never changed by special pardon. therefore, in isolation from validity of the view about separability of judgement of guilty, the accused specially pardoned has a actual profit that remove all effects of the judgement of guilty by retrial, permanently. there is significant meaning in recent case law of the supreme court of Korea, by making sure this point.

목차

대상판결

Ⅰ. 들어가는 말

Ⅱ. 특별사면의 효과로서 ‘형 선고의 효력상실’의 의미

Ⅲ. 형 선고의 효력이 상실되는 특별사면사건 대한 재심개시

Ⅳ. 재심공판절차 : 면소판결인가,아니면 유･무죄의 실체재판인가?

Ⅴ. 맺음말

키워드

retrial special pardon invalidation of conviction acauittal dismissal of the prosecution