판결집행명령서가 존재하는 여순사건에 대한 형사 재심 허부 - 대법원 2019. 3. 21. 자 2015모2229 전원합의체 결정을 중심으로

Between October and November 1948, numerous civilians were arrested and detained on the grounds that they had cooperated with insurgent forces during an internal rebellion. They were subsequently executed pursuant to written execution orders of a military tribunal. Decades later, the victims’ surviving family members filed petitions for a criminal retrial under Articles 420(7) and 422 of the Criminal Procedure Act. At the trial and appellate levels, the central issue was whether occupational crimes committed by judicial police officers specifically, illegal arrest and detention during the investigative process forming the basis of the prosecution could be recognized as valid grounds for a retrial. The prosecution contended that no final and conclusive judgment existed establishing such occupational crimes and that the alleged illegality had not been proven beyond a reasonable doubt. The lower courts, however, found that the totality of the circumstances sufficed to establish the existence of those crimes. Before the Supreme Court, an additional issue arose as to whether the existence of final and conclusive judgments against the victims themselves could be acknowledged as a prerequisite for the commencement of retrial proceedings, in conjunction with the illegal arrest and detention by judicial police officers. In addition, it is likely that there were differing perspectives on the role of the judiciary. The Supreme Court en banc Order 2015Mo2229 dated March 21, 2019 (hereinafter the “subject case”) was divided into a majority opinion and dissenting opinions. The majority opinion recognized both the illegal arrest and detention by judicial police officers and the existence of final and conclusive judgments against the victims. Dissenting Opinion 1 (joined by two Justices) rejected the illegal arrest and detention by judicial police officers while Dissenting Opinion 2 (also joined by two Justices) denied the existence of final and conclusive judgments against the victims. Although the immediate legal dispute concerned the interpretation of Articles 420(7) and 422 of the Criminal Procedure Act, the subject case reflects a deeper theoretical confrontation between the legislative policy theory and the constitutional foundation theory (due process theory) theory regarding the nature and justification of criminal retrials. Divergent views on the extent to which the unique characteristics of past state violence cases should influence retrial standards appear to have significantly affected the final decision. The majority opinion is substantially grounded in the constitutional foundation theory (due process theory) and gives considerable weight to the distinctive features of retrials concerning past state violence cases. By contrast, the dissenting opinions adhere to the legislative policy theory and apply the doctrinal framework of ordinary retrials to cases involving past state violence. The majority opinion’s interpretation particularly its holding that proof of occupational crimes by judicial police officers need not meet the threshold of excluding all reasonable doubt constitutes a significant development in the jurisprudence of criminal retrials and is likely to exert a lasting influence on future retrial practices.