이중처벌금지원칙과 불이익재심의 가능성 = Ne bis in idem and Retrial in Criminal Justice

다국어 초록 (Multilingual Abstract)

How would he be destined if the defendant is revealed a genuine criminal after he was acquitted? There is no way to punish him in Korean criminal justice system even if justice principle requests punishment against him. Retrial clauses of the Criminal Procedure Act couldn’t be revised to end this injustice because such an attempt shall be regarded unconstitutional under ne bis in idem clause of Article 13(1) of Korean Constitution which provides that no citizen shall be punished twice for the same crime. Shall retrial be permitted only if a dependent has legal interests? Or Could it be permitted if there are reasonable reasons for justice? To come to conclusion for this dispute, I have studied on historical context of the ne bis in idem and Double Jeopardy, origins of these principles and comparison research of leading countries as well as views of international human rights law. As a result, several things have revealed as follows. First, ne bis in idem is a general principle that dates to Roman law and had been developed in Civil Law system. Double Jeopardy, on the other hand, had become a legal principle since ne bis in idem was transmitted to Common law system. Regardless of different legal history, they had all become very important principles to protect human rights in criminal justice in modern society. Second, ne bis in idem including Double Jeopardy is not seen in the lists of rights provided by universal human rights documents such as French Declaration of Man and of the Citizen(1789) as well as Universal Declaration of Human Rights(1948). This means that these principles are not absolute rights that shall not be derogated, but legal principles that could be negotiated with justice principle. Third, These principles are considered not so strong from the perspective of present international human rights law. For example, these principles are out of ambit of European Convention on Human Rights, but only prescribed in the Protocol to the Convention that state parties can choose whether they ratify or not. Fourth, comparison study on Constitutions and codes of criminal procedures of leading countries makes it possible not to consider that retrial is permitted only when it gives a dependent legal interests. Germany, for example, whose Constitutions is similar to Korean, that is permitted retrial against a dependent’s interests is a strong example that ne bis in idem allows retrial against a dependent’s interests in a certain circumstances. Fifth, Recent change of retrial in UK must draw our attention on this issue. UK has revised Criminal Justice Act to make it possible for public prosecutors to apply retrial against a dependent’s interests in a certain circumstances regardless of double jeopardy. As a result of the above research, we can come to conclusion that retrial against a dependent’s interests in a certain circumstance could be possible, not in contradiction with ne bis in idem or double jeopardy.