개정 형사소송법상의 공소장일본주의

The Principle of ‘Written Indictment Only’ in the Revised Criminal Procedure Act

Article 118 (2) of the Criminal Procedure Rule provides that “The indictment should not be accompanied by any documents or any other materials which are likely to give prognosis to the judge concerning the case, and their contents should not be cited also”. It is called “the principle of written indictment only”. In case the principle is violated, the public prosecution shall be dismissed by judgement. The legislative purport of the principle is to guarantee the principles of fair trial in adversary system of criminal procedure. However, the principle of written indictment only inevitably is bound to have certain limitations in relation to other principles of criminal procedure. At the stage of indictment filed, ‘the principle of written indictment only’ is in conflict with the article 118 (2) of the Criminal Procedure Act. As criminal proceedings progressed, ‘the principle of written indictment only’ are constrained. by pretrial arrangement or discovery procedure, etc. In the recently revised criminal procedure system, pretrial arrangement and discovery procedure are introduced. For that reason, it is necessary to reinterpret ‘the principle of written indictment only’ with respect to them. This Article starts with a review of the history of ‘the principle of written indictment only’ and its legislative precedents of foreign countries. Secondly, it analyzes leading judicial precedents and theories of domestic and abroad. Finally, it suggests criteria on that issue and possible solutions to the problems.