재심심판절차의 본질과 기판력, 후단 경합범의 성립

This paper will examine the effect of res judicata and the establishment of retrospective concurrent crimes in relation to reopening procedure by dividing the relevant cases into two categories. The first category deals with the cases where a judgment of reopening procedure (hereinafter “new judgment”) is pronounced for a habitual crime, for which a criminal defendant received a sentence that became final and conclusive (the earlier offense), which was followed by a similar habitual crime (the later offense). With regard to the first type of cases, two questions need discussion: ① whether a trial court adjudicating the later offense shall pronounce the acquittal of prosecution on the grounds that res judicata of a new judgment for the earlier offense that became final and conclusive extends to the later offense; and ② whether the court shall mitigate or exempt the sentence for the later offense by deeming the relationship between the earlier offense and the later offense (which was committed before a judgment of reopening procedure for the earlier offense became final and conclusive) as constituting concurrent relationship in retrospective term (hereinafter “retrospective concurrent crimes”). The second category deals with the cases where a new judgment is pronounced for the later offense before a judgment for the earlier offense becomes final and conclusive. If the reopening procedure has been initiated for the earlier offense, a trial court adjudicating on the earlier offense must determine: ① whether to pronounce the acquittal of prosecution on the grounds that res judicata of a final judgment for the later offense extends to the earlier offense; and ② whether the court shall mitigate or exempt the sentence for the earlier offense by deeming the relationship of the earlier offense (which was committed before a judgment of reopening procedure for the later offense became final and conclusive) and the later offense as constituting retrospective concurrent crimes. These matters are highly related to the nature of reopening procedure. Considering the distinctive nature of the reopening procedure, the court may not adjudicate simultaneously on the case subject to reopening procedure and the regular case by conducting joint oral proceedings or granting permission of amendment of the bill of indictment. The reopening procedure is intended to benefit a criminal defendant who has been found guilty only under exceptional circumstances. For this reason, a trial court adjudicating on the later offense in the first category and the court in reopening procedure adjudicating on the earlier offense in the second category ought not to pronounce the acquittal of prosecution on the grounds of a final judgment in other proceedings or recognize the establishment of retrospective concurrent crimes.