이른바 “계속적 위험론”에 관한 비판적 고찰- 미국 판례 분석을 중심으로-

A prosecutor’s appeal against an acquittal on the ground of mistake of fact represents not only an extended opportunity for the prosecutor to prove the defendant’s crime, but also an opportunity to remove the weaknesses of his/her arguments at the trial. This is tantamount to shifting the his/her own responsibility of proving the defendant’s guilt to the judges of the 282appellate court, which causes considerable suffering on the part of the defendant. In South Korea, the theory commonly cited for justifying a prosecutor’s appeal against not guilty ruling is the ‘continuing jeopardy’ theory, which means ‘a prosecutor’s appeal against a not guilty ruling does not constitute double jeopardy, as the jeopardy continues until the decision is finalized. The continuing jeopardy theory originates from the U.S. case law, but it had failed to be recognized as convincing argument for a long time. Decisions based on the theory did not appear before the 1980’s. The theory, however, was mainly cited for the purpose of determining whether a new trial held after a guilty ruling or a suspension of trial is against the double jeopardy rule. Prohibition of appeal against an acquittal remains unaffected by the theory. An acquittal judgement, including verdict by the jury, is the most definitive and strongest ground for ending the first jeopardy. Furthermore, in the context of South Korean appellate system where the prosecutor is allowed to change the written arraignment or submit new evidences, the jeopardy at the appellate level can hardly be considered as ‘continuation of the jeopardy that had originated from the trial.’ Appeal against an acquittal based on the continuing jeopardy theory is also against the Supreme Court’s ruling in the Green case that the purpose of the double jeopardy rule is to prevent ‘anxiety and insecurity’ due to ‘embarrassment, expense and ordeal’ suffered by the defendant, as well as the principle of speedy court proceedings under the Korean Constitution. To the contrary, considering the status of the continuing jeopardy theory within the U.S. case law and the finality of (at least) an acquittal verdict by the jury should be considered as ending the first jeopardy.