Earticle

초록

영어

New trial in a criminal action occurs when an important misunderstanding of the truth is spotted or is suspected of, and it is an emergency aid procedure for the convicted to confirm the illegality and the injustice of the adjudication. Although the code of criminal procedure Item 5 of Art. 420 enacts one of the reasons for new trial as 'when a clear and new evidence is discovered,' there are many disputes over the standard and the manner of judgement. Hitherto, the Korean Supreme Court did not recognize the new evidence if it was not presented intentionally or negligently. In addition, the Court for the application of new trial persist that new evidences should be examined separately, not comprehensively with other evidences, for the proof to
be evident, and that it should be examined by the judge who made the irrevocable judgement of the accused. These judgments are made in the stance that puts importance to legal safety. However, these precedents run counter to the reason for new trial in a criminal action; that it aids the innocent under a false charge. Legal stability is not an absolute notion; and therefore should
be reinterpreted with justice and harmonious interpretation. Also, these precedents run counter to the freedom from conviction, which is that the court judges the actual value of the evidence with a free impression. It is also contradictory towards the preliminary examination that occurs before the decision for a reexamination is entered to the original bill. These precedents are also contradictory to the principle of valuing all evidences comprehensively, and with the need for implicit application of the changed the Korean Supreme Court rulings, they should be changed. The responsibility to settle the undeserved accusation and to re-grant the reputation of the many who were ignored of their rights under the past dictatorial government lies in the hands of the court. This is, ultimately, the way to rid of the people's distrust of the judicature, and to gain legal peace and stability.

목차

Ⅰ. 머리말
 Ⅱ. 재심이유로서 증거의 신규성과 명백성
  1. 증거의 신규성 문제
  2. 증거의 명백성 문제
 Ⅲ. 확정판결을 대신하는 증명
 Ⅳ. 맺음 말
 참고문헌
 

키워드

저자

• 김희수 [ Kim, Hee-Soo | 전북대학교 법과대학 부교수, 변호사 ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  원광법학 [Journal of Law research]

• 간기

  계간

• pISSN

  1598-429X

• eISSN

  2508-4526

• 수록기간

  1962~2025

• 등재여부

  KCI 등재

• 십진분류

  KDC 360 DDC 340