특별사면과 재심

Recently, the supreme court of Korea modified existing case law which can not permit retrial of the cases specially pardoned that extinguished effect of conviction, because there is no final judgement of guilty as the object of retrial. furthermore, unlike the general pardon case that extinguished the right of accusation, the retrial court has to close the case by judgement of guilt or not, not by acquittal.in the view that in the case specially pardoned that extinguish effect of conviction, retrial can not be permitted, the judgement of guilty has a part for decision in relation to the facts constituting crime and a part of sentence in relation to punitive action, and these parts can not be divisible. so if the effect of sentencing by special pardon, the effect of other part(guilty decision about the facts constituting crime) is to be extinguished, too. therefore, eventually the object case for retrial(irrevocable judgement of guilt) as a whole can not exist. this view is the basic logic in the past Japanese lower court case law, and the existing case law of supreme court of Korea also present the conclusion,not permitting retial about the cases specially pardoned that the effect of conviction is to be extinguished, based on above Japanese case law and logic. but the effect of special pardon is restricted to the extinguishing effect of sentencing in future, so the fact and historical effect that the accused had been guilty is never changed by special pardon. therefore, in isolation from validity of the view about separability of judgement of guilty, the accused specially pardoned has a actual profit that remove all effects of the judgement of guilty by retrial, permanently. there is significant meaning in recent case law of the supreme court of Korea, by making sure this point.