법원이 가지는 재량의 한계와 변론재개의무

Abstract

The resumption of the trial in criminal proceedings was dealt with only at the discretion of the court, and there was no particular controversy. Recently, the Supreme Court recognized the duty to resume the trial and hearing. In that case, when the victim took her own life after the pleadings of the appellate court were concluded, the appellate court did not resume the pleadings and judged the sentence unfavorable to the accused, and sentenced him to 9 years in prison, more than twice the 4-year prison term of the first trial. In this case, the Supreme Court judged that it should have reopened the pleading to give the accused an opportunity to defend, such as hearing the defendant's opinion on the relevance of the victim's death and the crime in this case, and additionally reviewed the new sentencing conditions related to the victim's death. This judgment is valid as it recognized the obligation to resume the pleadings when special circumstances occurred after the conclusion of the pleadings. However, it is difficult to accept the position of the Supreme Court that there is no obligation to accept a request for resumption of pleadings to change the indictment. For the realization of the state's right to punish and justice, the resumption of pleadings to change the indictment must be made mandatory. Therefore, in such a case, the pleadings must be resumed to determine whether or not to change the indictment, unless there are special circumstances. In addition, the pleading must be resumed in principle, unless there are special circumstances in which the request for resumption of pleading by the prosecutor, defendant, or defense counsel is a repetition of futile procedures or an intention to delay the trial. In particular, it is necessary to acknowledge the grounds for reopening more broadly in the final stage of the fact-finding trial, the appeal trial.