일부기소의 심판대상과 일사부재리효력

The purpose of this paper is to review issues relating to partial public prosecution and criticize court’s judgement on partial prosecution. One crime and compound crimes(several crimes by one act) in criminal law mean one case in criminal procedure. If one case has been prosecuted partially and before judgment on that case has become final, I insist that ‘not guilty or guilty’ can be judged. Because a defendant can have a chance of the partial public prosecution and the other part of one case through ‘Changes in public prosecution’(Article 298) to be tried in one procedure. There are opinions that in this case partial public prosecution should be dismissed by judgment. So I think that this view is incorrect. On the other hand after judgment on the partial public prosecution has become final and if the additional public prosecution has been instituted, I insist that acquittal shall be pronounced by judgment. But the court pronounces ‘not guilty or guilty’ by judgement. This is incorrect. There are various reasons. First of all because the first partial public prosecution and the additional public prosecution are one case. So a final binding judgment on the first partial public prosecution has effect of ne bis in idem(prohibition against double jeopardy) and the defendant should’t be placed in double punishment or jeopardy. The other important reason is that under current criminal procedure law, the scope of object of trial should be equal to the scope of the effect of ne bis in idem(prohibition against double jeopardy) to keep the balance between realization of criminal justice and protection for defendant from double jeopardy. ‘Principle of Public Prosecution by State’(Article 246) and ‘Principle of Inseparable Public Prosecution’(Article 248 ⑵ ) are expressly stipulated in current criminal procedure act. ‘Principle of Inseparable Public Prosecution’ means that a public prosecution instituted against a part of facts of a crime shall be effective to the crime as a whole.