재심이유인 명백성 판단의 객관화 방안에 대한 고찰 -일본의 증거구조론에 대한 논의를 중심으로-

The constructed evaluation theory of Japanese criminal procedure is considered to be helpful for the practical affairs of current trials in South Korea in which obvious proof is the main reason for retrial. In the constructed evaluation theory, the judicial premises are the judgment methods according to the total evaluation theory and reasonable doubts about fact finding. The constructed evaluation theory was formed in the process of reviewing Shiratori rulings and conducting follow-up research. In its early days, it was presented to prevent unexpected damage to the plaintiff of retrial. With the continued research, however, it set new goals of confirming the target of impeachment and objectifying and visualizing the judgment of obvious proof. As a result, it became important to figure out organic connections between fact finding and proof in the ruling of retrial target. In the constructed evaluation theory, the basic discussion goes as follows: if they add new proof to the established structure, make a total evaluation along with the existing proof, and find the old structure shaking and collapsing, they should open a retrial. Specifically, the pre-retrial procedure goes through three stages including interpreting the final ruling, explaining organic connections between the proof supporting a plea of guilty, and making a total evaluation with new proof. The constructed evaluation theory was introduced to fulfill the legislative goal of retrial, which is to save innocent defendants, and ultimately guarantee predictability and judicial faith and correct failure. In South Korea, the proper functions of the constructed evaluation theory can be expected in the aspects of getting legislative samples and obtaining the reality of trials and judicial faith. There are, however, several obstacles to the utilization of the theory including the high level of obvious proof judicially and the difficulty with securing the old investigation and trial records and evidence. They should be supplemented with stricter judgments, active supports for the implementation of retrial cases, and the court’s proper exercise of jurisdiction of inquiry. If the judgment of obvious proof becomes more elaborate through the constructed evaluation theory, the legislative goal of retrial, which is to save innocent defendants, will no longer be an empty slogan.