효력을 상실한 비약상고의 항소간주 - 대법원 2022. 5. 19. 선고 2021도17131 전원합의체판결의 다수의견 비판 -

Article 373 of the Criminal Procedure Act, under the title ‘Appeal to Appellate Court and Direct Appeal to Supreme Court from District Court’, provides that a final appeal against the judgment in the first instance(“direct appeal”) loses its effect if appeal to the appellate court is filed. Majority Opinion of Supreme Court en banc Decision 2021Do17131, 2021Jeondo170 Decided May 19, 2022, ruled that if a direct appeal loses its effect due to opponent’s appeal, the appellate court shall consider it as a valid appeal. Emphasizing the necessity to respect the ‘true intention of the defendant’, the Majority Opinion asserted that such a conclusion is not contrary to the provisions of the Criminal Procedure Act. The viewpoint of the Majority Opinion, however, includes several obvious logical defects and above all, undermines the legal stability and structural certainty of criminal proceedings. Through cunningly disguising application against text as text-conforming interpretation, the Majority Opinion evades burden of legal argumentation inevitably required to contra legem interpretation. Moreover, not only does it decide an effect of procedural act based on the subjective and ambiguous standard, rather than the objective indication, it also misinterprets the actual intention of the accused. This paper criticizes flaws in the Majority Opinion, utilizing general theory of litigation act and legal argumentation.