사재심절차의 활성화를 위한 몇 가지 쟁점과 전망

Abstract

The criminal retrial system is the only system that can find substantive truths by correcting judicial errors. It is also justified in guaranteeing human rights by bringing honor back to the defendant and recognizing the state's responsibility. The Criminal Procedure Act stipulates that if there is a certain reason, a final judgment of guilt can be requested for a retrial in favor of the person sentenced.
 However, criticism has been raised since the system itself is not so effective as it is extremely time-consuming as well as being difficult to prove. This study analyzed retrial procedures to solve the legal and practical problems.
 When submitting a request, it is difficult to get investigative and trial records necessary for a retrial. It is also problematic to confine the subject of request to a final judgment of guilt. In addition, when deciding commencement of retrial, there is no regulation on when to start the retrial. The claimant had to wait indefinitely for the court's decision. If the defendant dies during the lawsuit, the new claimant had to resume the lawsuit. Sometimes there are meaningless requests for opinions, reckless appeals. In the retrial stage, it was pointed out that there was no active effort to reflect on and correct the past. As the court took a passive attitude in a retrial, even the innocent accused could not be apologized.
 In this study, to activate the criminal retrial procedure, several alternatives were proposed. First, abolishing de facto practices such as getting investigation records and trial records and enhancing meaningless appeals and re-appeal were suggested. The necessity of revising the law for the retrial procedure was also discussed. It is necessary to establish legal regulations for effective system establishment, such as expanding the subject of retrial, clarifying the period for the commencement of retrial, and introducing litigation succession regulations.