再審理由의 一般論에 관한 考察

A Study on the general theory of the reasons for retrial

This study investigated the reasons for retrial by fallacy, the reasons for retrial on the definitive decision of dismissal of re-appeal, and proof in lieu of the definitive decision. The following aspects were investigated in details in case of the reasons for retrial by fallacy. 1. In case that the fact, which documentary evidence or articles of evidence shown in the first decision were forged or altered, have been proved by the definitive decision. 2. In case that the fact, which the witness, the expert evidence, the interpretation, and the translation shown in the first decision were forged, has been proved by the definitive decision. 3. In case that a judgement of guilty has been rendered in consequence of a false accusation and this has been proved by the definitive decision. 4. In case that the decision, on which the first judgement was based, has been altered by the definitive decision. 5. In case that the decision or the judgement for the nullity have been confirmed on which a judgement of "guilty" has been rendered for the offense of infringing a copy right, patent right, an utility model right, a design right, or a trade mark. 6. In case that the offenses committed by a judge, who was participated in the first judgement or the judgement by the court below or inquiry which formed the basis of such judgement, and a public prosecutor or a judicial police official, who were participated in institution of public prosecution or investigation based on public prosecution, were proved by the definitive decision. The scope of judgement was investigated in the reasons for retrial on the definitive decision of dismissal of re-appeal. The scope, on which the definitive decision can not be finalized, was investigated on the proof in lieu of the definitive decision. The scope of documentary evidence or articles of evidence in the first decision must include the evidence of the criminal facts as well as evidence by oral statement since these are appropriate for an effective management of retrial. The offenses committed in connection with his official functions do not have to be within the crimes concerning the duties of public officials under the general criminal law since these can be regulated by the special criminal law. In rules of law, the retrial can be requested only in cases of the judgment of dismissal of appeal or re-appeal, however, it should be also included in cases of the ruling of dismissal of appeal or re-appeal to protect an accused. In addition, the situations, on which the definitive decision can not be finalized, are in cases of death or missing of an offender, under a habitual condition of mental unsoundness of an offender, under the completion of the period of limitation for a public prosecution, under the amnesty, under the non-institution of public prosecution, and under the suspension of prosecution.