무죄변론의 범죄성립요건단계별 고찰 - 대구지법 2022. 1. 26. 선고 2021고합456 판결에서의 변론을 중심으로 -

A criminal trial is a normative argument procedure in which a judge freely forms his or her opinion through evidence regarding the prosecutor's claim of guilt and determines whether or not the defendant is guilty of a crime. The judge's recognition of the defendant's crime is the result of two understanding activities. One is the understanding that the defendant's criminal facts acknowledged by the judge fall within the meaning of the criminal legal provisions applied to him - that they are "subsumed" by legal provisions according to the legal syllogism - and the other is the understanding that the defendant's criminal history has truly been committed in the past. It is an understanding of what was done. This process is an activity to reconstruct the criminal act that can be said to have been committed by the defendant based on the numerous information (evidence) that emerged during the trial process, and can be said to be the work of discovering the substantive truth through the judge's legal arguments. The ultimate goal of a criminal trial is to discover the substantive truth about the crime and avoid erroneous judgments - errors in recognition of facts. In particular, the not guilty plea of the party claiming innocence (mostly the defendant's lawyer) can be said to be an exercise of the right to defense to avoid the risk of being judged guilty (misjudgment), and a process of participating in the judge's argumentation process. The not guilty plea is important in normal trial procedures, but it is even more important in a retrial due to the discovery of new evidence of innocence. Retrial contributes to reconciling the conflict between the request for legal peace based on a final judgment and the request for restoration of truth and justice by eliminating judicial errors (Justizirrutümern) that exist in the final judgment. The retrial procedure is essentially the final step in which the retrial applicant can eliminate the misjudgment in the final judgment of guilt and reveal his or her innocence. In other words, as a retrial applicant who claims his innocence through a retrial, the plea of not guilty to discover the substantive truth is an extremely earnest appeal. In this case, the defense lawyer argued for reasons for not guilty in a logical and orderly manner based on the establishment of a crime and reasons for exclusion under criminal law. In other words, the exclusion of the constitutional requirement was claimed - of course, the exclusion of the structural requirement was not explicitly claimed in the pleadings - but then the illegality aspect was claimed, and then the liability aspect was asserted. And the court appears to have made an effort to persuade both the defendant and the victim by individually and diligently reviewing the defense attorney's claims of innocence. Both the defense attorney's arguments and the court's judgment are evaluated as having reasonableness and specific validity. From this perspective, the target judgment is a case in which the positive interaction between judges and defense attorneys in the courtroom resulted in the correct recognition of facts, and at the same time, it is evaluated as a judgment that once again confirms that sincere defense produces sincere and reasonable judgments.