公訴事實의 同一性에 관한 硏究

Abstract

ABSTRACT

A Study on the Same Offense

Jeon, Myung-Gil Advisor : Prof. Kim, Jong-Goo, Ph.D Department of Law Graduate School of Chosun University

According to dynamic and developmental nature of Criminal Procedure Code, a charge may be changed into factual and legal as a case progresses. So judging identity of a charge is considered as important. Identity of charges in the Law of Criminal Procedure involves in effect of prosecution, limit to change of a written arraignment, objective range of Res judicata, and preliminary and optional statement of charges. In particular, an issue if the range of the court is identical to the effect range of double jeopardy is presented. The range of subjects to be judged and the effect range of double jeopardy that are opposite ideas with effects of inverse proportion bring opposite effects to two ideas of ' defensive gains of the accused' and' positive truth finding' or ' realization of criminal justice' . If the range of subjects to be judged is broader than that the effect range of double jeopardy, it may meet an idea of positive truth finding more, but the effect of double jeopardy decreases, which brings somewhat disadvantageous results to defensive interests. However, if the effect range of double jeopardy is broader than the range of subjects to be judged, it is advantageous to defensive interests of the accused, but less effect will be given to positive truth finding. In criminal procedures, conflicts between interest of the accused, legal stability, positive truth or idea of justice should be coordinated. The written arraignment change system should have wider range in that it is designed to guaranty defensive right of the accused and secure case economy while pursuing actual justice. The range of Res judicata should be intended to protect interests of the accused, but its range should be somewhat limited so actual justice may not retreat. Prosecuting against part of a crime based on Prinzip der Unteilbarkeit des Prozesgegenstandes have effect on whole crime and the court must allow change of written arraignment when identity of charges is not damaged. If so, whether whole crime that ent when id has an effect on or identity of charges as the range change of written arraignment is allowed is a case id histot ois a factual en arid hasmust be differentiated fntm identity of ctmposition or illegal content. As the written arraignment change system is designed to guaranty defensive right of the accused and sivoke the right of ht oer punisho, whedecreasing the range by limiting identity of natustemf crime or illegality makes the system meaningless. Therefore, identity of charges should be judged in a natural and omni-legal perspective based on the Basic Fact Identity Theory. However, if the range of double jeopardy depends on the Basic Fact Identity Theory, it may violate the idea of criminal justice realization as it is too broad. Criminal justice may be ignored by protecting the rights of the accused excessively. However, for the Identical Factor Theory the Supreme Court of the United States adopts, as the range identity of charges is recognized as too small, rights of the accused is not protected sufficiently. Therefore, in judging identity, normative factors should be considered for realization of justice and specific validity, which limits the range of Res judicata.