정식재판절차와 불이익변경금지의 원칙 - 형사소송법 제457조의2 존치론 -

In the Korean criminal procedure law, the prohibition of reformatio in peius is regulated not only under the procedure of the second instance, third instance, and retrial but also under the objection(Einspruch) against the summary procedure(Strafbefehl). The purpose of these provisions is to guarantee for the defendant that no essential disadvantage will surprise him during the appellate procedure including the objection procedure against summary procedure(§ 457a). Nowadays, many scholars and legal practicers argue the abolition of the prohibition of r. i. p in the objection procedure and abolishment bill of § 457a is currently pending at the National Assembly. However, I can not agree with this bill. The prohibition of r. i. p by § 457a suggest a psychological pressure on the side of the defendant since without such prohibition the defendant should fear that the sentence of the judgement of summary trial will be increased, so the prohibition of r. i. p compensates the defendant’s situation in respect to the prosecution. In this sense, it serves the principle of equality of arms as a component of a fair procedure. This article examines the reasons for the existence of the prohibition of r. i. p in the objection procedure in the light of the principle of fair procedure and criticize basis of abolition arguments of § 457a that are mainly based on judicial economy.