항고전치주의와 재정신청기간

• 영문명: The reviewing procedure on the prosecutorial disposition not to be prosecuted
• 발행기관: 한국형사판례연구회
• 저자명: 전승수(Chun, Seung Soo)
• 간행물 정보: 『형사판례연구』형사판례연구 제18권, 519~540쪽, 전체 22쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.06.30

영문 초록

The Criminal Procedure Act of Korea prescribe that only the prosecutor is authorized to prosecute a criminal case and to determine whether or not a criminal case will be prosecuted. On the other hand, the judicial review system is implemented in the Korean criminal procedure to protect the constitutional right of criminal victims to make a statement in a trial and to judicially control the prosecutorial discretion. It was limited to some abusive crimes of authority by a public officer but is expanded to all crimes after the revised Act took effect on and after January 1, 2008. An accuser as a victim of crime should file a review by the prosecution before appealing to the court against the prosecutorial disposition not to be prosecuted. And the prosecutorial review is compulsory as a legal obligation prior to the judicial review. It helps to enhance the efficiency of the reviewing system on prosecutorial discretion. It also is intended to minimize expenditures of time and to prevent abusing the judicial reviews. But there are some exceptions in the preliminary proceeding. An accuser as a victim of crime can appeal directly to the court against the prosecutorial disposition not to be prosecuted without going through a prosecutorial review where ⅰ) a notice that the prosecutor made a decision not to be prosecuted is reached after being investigated again through the prosecutorial review, ⅱ) 3months has passed without any decision since filing a prosecutorial review, or ⅲ) the prosecutor doesn t indict until 30 days to the completion of prescription for prosecution. The accusers shall file to the court a written petition of the judicial review on the prosecutorial disposition within 10 days of the notice s arrival. They shall appeal to the court within 10 days when the exceptional condition has been fulfilled. Even though an exception is applicable, the accuser may go through a prosecutorial review. That is to say, the accuser is not forced to appeal to the court in case of an exception. Because it is intended by the lawmakers to protect the right of an accuser as a victim and is not proper to disadvantage an accuser who go through the statutory procedure. Especially, the purpose of allowing the direct appeal to the court after 3 months passing without any decision of the prosecutorial review is not to force the appeal to the court but to protect the interest of an accuser.

키워드

재정신청 재정신청의 대상 재정신청권자 항고전치주의 항고전치주의 예외사유 재정신청기간 불변기간 the judicial review on prosecutorial discretion the right of a victim to file a judicial review on prosecutorial discretion the prosecutorial review procedure prior to the judicial review exceptions of the prosecutorial review period of filing a judicial review