형사소송에서 의사표시의 하자

The defect in a declaration of intent as a ground for invalidity of procedural acts in criminal proceedings is theoretically and practically less significant compared to violations of mandatory provisions. Broadly recognizing invalidity on the grounds of such defects inevitably weakens the normative force of procedural rules. However, entirely disregarding the defect in a declaration of intent when evaluating the validity of procedural acts is also unreasonable. In practice, there are numerous cases where defendants challenge the validity of procedural acts based on errors in essential elements. Thus, it is necessary to establish rational criteria for when procedural acts become invalid due to defects in a declaration of intent, thereby striking an appropriate balance between formal adherence to procedure and substantive justice. Scholarly views on this matter can be categorized as follows: (i) The defect in a declaration of intent has no effect on the validity of procedural acts; (ii) Procedural acts are invalid only when such defects violate the principle of due process; (iii) Procedural acts become invalid when the defendant is not at fault and recognizing the validity of the act would contravene justice; (iv) Procedural acts are invalid as long as the defendant is not at fault, irrespective of considerations of justice. Textbooks generally adopt either position (ii) or (iii), while the Supreme Court adheres to position (iii). However, the author supports position (iv). Meanwhile, regarding defects in a declaration of intent without the defendant's fault in acknowledging the authenticity of a statement or consenting to evidence, the Supreme Court holds that such procedural acts may be revoked. Some academic views align with this position. Nevertheless, the author contends that procedural acts that meet the formal requirements in criminal proceedings can only be valid or invalid and cannot be subject to revocation.