The retrial of past cases is on the rise, and in this regard, media reports can often be confirmed that the honor of the defendant has been restored by the court's acquittal of the retrial petitioners. This can be seen as contributing greatly to the p...
The retrial of past cases is on the rise, and in this regard, media reports can often be confirmed that the honor of the defendant has been restored by the court's acquittal of the retrial petitioners. This can be seen as contributing greatly to the protection of human rights, but on the other hand, there is criticism that it accepts a wide range of retrials for past cases, even though it should be operated extremely exceptionally because retrials are a system that regresses legal stability as an emergency relief procedure.
There have been a number of studies on reconsideration of the past, but among them, I would like to look at the reconsideration trial of the Jeju 4·3 case that I have experienced. In particular, by closely analyzing legal issues that were at issue in the initial trial, we aim to contribute to the construction of academic data for the reconsideration of past cases.
The retrial of the Jeju 4·3 case does not have records such as case records, charges, and judgments, and only some data related to the Jeju 4·3 case remain. Because of this specificity, a lot of legal debates have arisen from the beginning of the retrial to the judgment. In order to make a decision to commence a retrial, the requirements set by the Criminal Procedure Act must be satisfied, but the question is whether the above requirements can be considered to have been satisfied with only limited data. In addition, even if a retrial is initiated and a retrial is tried, whether it is possible to judge, and if so, what kind of judgment can be made becomes problematic.
In this regard, in this thesis, the nature of the retrial was reviewed, the possibility of a request for a retrial in the Jeju 4·3 case, the existence of a final conviction, and the existence of grounds for a retrial were reviewed at the retrial commencement decision stage, and the existence of specific relaxation of the facts charged and the existence of substantive judgment were reviewed at the retrial stage.
The retrial should pursue substantive justice to the extent that it does not endanger legal stability and legal peace, and the Jeju 4·3 Incident does not give fair procedural opportunities to the Defendants in a court-martial trial due to its uniqueness, and it is difficult to see that the conviction was drawn through fair procedure and judgment process.
The trial of the Court-Martial, which is the subject judgment of the retrial of the Jeju 4·3 case, is based on the declaration of martial law in violation of the Constitution, and the request for retrial should be recognized in that it is invalid and there is a need to correct the defects.
In principle, whether there is a ground for a retrial should be proven by the person having the right to request a retrial, but in the case of the Jeju 4·3 Incident, even though it is not easy to secure records due to the possibility that the records were discarded or destroyed due to the occurrence of a long lapse of time, it is excessively harsh to request strict proof from the Defendants requesting a retrial, so it can be determined that there is a ground for a retrial only with the remaining data.
Although there is no record of the retrial of the Jeju 4·3 case, it is not required that a written judgment of conviction exists, and it is possible to prove the fact that a conviction has been finalized by using other data or evidence, so it can be recognized that there is a final conviction at the retrial of the Jeju 4·3 case.
Even if the date, time, place, and method of the crime among the facts charged in the retrial of the Jeju 4·3 case lack some specificity, it does not go against the specific purpose of the facts charged, so even if the facts charged are relaxed and recorded, it should be considered that the facts charged were specified.
Although a judgment of dismissal of prosecution may be given for a prosecution in a trial without complying with the procedures, a judgment of acquittal can be pronounced, in exceptional cases where there are special circumstances such as where the need for the restoration of the defendant's honor and remedy for human rights violations is recognized as urgent, since it should be seen that a substantive judgment of acquittal can be made.
It is hoped that the research in the paper will be of little help in resolving the case in past events or other similar cases that have not been legislatively resolved.