항소심에서의 공소장 변경에 관한 비판적 소고

The amendment of indictment system is an important exception in the Korean criminal procedure law that adopted the Adversary System, since only the prosecutor can apply for it while the defendant cannot intervene in this process. The application for amendment of indictment, therefore, should be done very cautiously and the judgment of the court on it should be strict, although there are few cases in which prosecutor and court actually confront each other on whether or not to permit the amendment of indictment. The Korean Criminal Procedure Law has consistently been oriented towards the Public Trial Priority Principle and has made efforts to comply with the First-Trial-centered Principle. An intervention in the second and third trials only at the level of correcting some errors under respect of the first trial judgment, after all factual and legal issues have been raised and judged in the first trial, is a process currently preferred by the judiciary as well as the entire public. However, achieving this goal requires overcoming many difficulties, one of which is ‘permission of amendment of indictment in second trial’ The permission of an amendment of indictment in the second trial much of the procedure in the first trial to be invalid. Although the amendment of indictment is permitted only within the condition of same basic fact, precedents show that the judgement on the permission of amendment of indictment is intervened with another criterion, ‘consideration of normative elements’. The defendant is forced to establish a defense strategy to prepare for various scenarios since they cannot suppose whether or not the amendment of indictment will be permitted. Permission of an amendment of indictment in the second trial means a re-discussion of the indicted fact from the beginning. This increases the fatigue resulting from the second trial and undermines the authority of the first trial. In this study, we suppose and discuss situations in which the amendment of indictment in the second trial should not be permitted. This is a very classic issue and has been discussed in relation to the structural theory of the second trial. This study, after discussing the structure of the second trial, argues that whether or not the amendment of indictment in the second trial is permitted and the structure of the appellate trial are irrelevant. This study, regardless of the structure of the second trial, shows that the amendment of indictment in the second trial leads to several unfair outcomes.