심판대상이탈론에 관한 고찰 - 대법원판례의 분석을 중심으로 -

The Supreme Court of Korea has held that in cases involving a single comprehensive offense or a single offense for sentencing purposes, the “effect of transfer of adjudication” and the “scope of factual object of adjudication” may be viewed differently. This theory applies in situations where part of the offense is found guilty, while another part is deemed not guilty or dismissed. If only the defendant appeals the guilty portion, while the prosecution does not appeal the not-guilty or dismissed portion, the Supreme Court has ruled that although the entire case is transferred to the appellate court under the principle of inseparability of appeals, the unchallenged portion is no longer subject to litigation between the parties and is effectively excluded from the object of adjudication. This stance of the Supreme Court appears to be influenced by the theory of object of argument in litigation developed by the Supreme Court of Japan. In Japan, the traditional view did not restrict the object of adjudication in appellate courts. However, with the transition to a review system, Japan introduced the ex officio investigation rule, which sought to balance an adversarial system with the separability of a single offense, leading to the adoption of the theory of object of argument in litigation. The Supreme Court of Korea, however, goes beyond the theory of object of argument in litigation by addressing not only the departure from the object of litigation but also the departure from the factual object of adjudication, suggesting an additional consideration of the system for amending indictments. Thus, the Supreme Court’s approach is more appropriately termed the theory of departure from the object of adjudication. From this perspective, the applicability of the theory of departure from the object of adjudication can be summarized as follows. In cases involving a single comprehensive offense or compound crimes, this theory aligns with Supreme Court precedents that interpret an additional indictment as an amendment to the original indictment. Since separability exists in such cases, they serve as typical examples where the theory of departure from the object of adjudication applies. In cases involving a single simple offense, if separability is recognized, such as when the legislature has explicitly provided for separate applicable legal provisions, the theory can apply in relation to the system for amending indictments. However, when mutually exclusive legal provisions are applied to the same factual situation, resulting in an indictment structured with primary and preliminary charges, the absence of separability precludes the application of the theory of departure from the object of adjudication.