이중위험금지의 원칙에 대한 법적 해석과 윤리적 판단에 관한 고찰

This article primarily analyzes the limits of legal interpretation and application of double jeopardy based on the concepts of event and personal identity. From a legal standpoint, double jeopardy or the principle of double punishment prohibition is generally traced back to the principle of ‘ne bis in idem.’ Double jeopardy and double punishment prohibition fundamentally prohibit the re-prosecution or punishment of the ‘same crime or offense’ to protect and secure the interests of citizens. Therefore, in order to apply double jeopardy, the question of how to define ‘the same offense’ or ‘the same event’ must be clarified. The doctrine of the sameness of basic factual relations is considered to be a good implementation of double jeopardy by requiring the identity standard to be found in the living experience of the general public. However, careful analysis is required to apply the two important judgment factors of double jeopardy, the close relationship, and incompatibility conditions, to actual cases. Additionally, it is possible that an act protected by double jeopardy may not be free from moral responsibility. This is a case where legal judgment and moral judgment do not agree. This article, in order to address these questions, first examines the general contents of double jeopardy and the principle of double punishment prohibition, which are rooted in the principle of ‘ne bis in idem’. Then, through a thought experiment, it considers the limits of legal interpretation and application of double jeopardy. To do this, it examines the two important judgment factors of double jeopardy, the close relationship, and incompatibility conditions, and analyzes and evaluates these conditions by applying them to the thought experiment case. Finally, it briefly explains the reason why the agent cannot be free from moral responsibility even though he or she may be acquitted on legal grounds in cases involving double jeopardy.