항고전치주의와 재정신청기간

다국어 초록 (Multilingual Abstract)

The Criminal Procedure Act of Korea prescribe that only the prosecutor is authorized to prosecute a criminal case and to determine whether or not a criminal case will be prosecuted. On the other hand, the judicial review system is implemented in the Korean criminal procedure to protect the constitutional right of criminal victims to make a statement in a trial and to judicially control the prosecutorial discretion. It was limited to some abusive crimes of authority by a public officer but is expanded to all crimes after the revised Act took effect on and after January 1, 2008. An accuser as a victim of crime should file a review by the prosecution before appealing to the court against the prosecutorial disposition not to be prosecuted. And the prosecutorial review is compulsory as a legal obligation prior to the judicial review. It helps to enhance the efficiency of the reviewing system on prosecutorial discretion. It also is intended to minimize expenditures of time and to prevent abusing the judicial reviews. But there are some exceptions in the preliminary proceeding. An accuser as a victim of crime can appeal directly to the court against the prosecutorial disposition not to be prosecuted without going through a prosecutorial review where ⅰ) a notice that the prosecutor made a decision not to be prosecuted is reached after being investigated again through the prosecutorial review, ⅱ) 3 months has passed without any decision since filing a prosecutorial review, or ⅲ) the prosecutor doesn't indict until 30 days to the completion of prescription for prosecution. The accusers shall file to the court a written petition of the judicial review on the prosecutorial disposition within 10 days of the notice's arrival. They shall appeal to the court within 10 days when the exceptional condition has been fulfilled. Even though an exception is applicable, the accuser may go through a prosecutorial review. That is to say, the accuser is not forced to appeal to the court in case of an exception. Because it is intended by the lawmakers to protect the right of an accuser as a victim and is not proper to disadvantage an accuser who go through the statutory procedure. Especially, the purpose of allowing the direct appeal to the court after 3 months' passing without any decision of the prosecutorial review is not to force the appeal to the court but to protect the interest of an accuser.

목차 (Table of Contents)

• [대상판결 1] 서울고등법원 2008. 10. 7. 자 2008초재1639 결정
• 2. 대상결정 2 : 서울고등법원 2008. 5. 9. 자 2008초재214
• 3. 들어가는 말
• 4. 재정신청제도
• 〔연구〕
• 1. 대상결정의 검토
• 2. 결 론
• [참고문헌]
• [Abstract]

참고문헌 (Reference)

1 임동규, "형사소송법(제5판)" 법문사 2008

2 차용석, "형사소송법(제3 판)" 21세기사 2008

3 신양균, "형사소송법(제2판)" 법문사 2004

4 정웅석, "형사소송법(전정제2판)" 대명출판사 2008

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6 "헌재 1993. 7. 29. 자 92헌마262 결정"

7 신동운, "신형사소송법" 법문사 2008

8 배종대, "신형사소송법" 홍문사 2008

9 이재상, "신형사소송법" 박영사 2007

10 "서울고등법원 2008. 5. 9. 2008초재214 결정"

11 "서울고등법원 2008. 11. 3. 자 2008초재1668 결정"

12 "서울고등법원 2008. 10. 7. 2008초재1639 결정"

13 "대법원 2005. 2. 1. 자 2004모542 결정"

14 "대법원 2002. 2. 23. 자 2000모216 결정"

15 "대법원 1998. 12. 14. 자 98모127 결정"

16 "대법원 1997. 4. 22. 자 97모30 결정"

17 "대법원 1991. 11. 5. 자 91모 68 결정"

18 "대법원 1988. 1. 29. 자 86모58 결정"

19 이 완 규, "개정 형사소송법의 쟁점과 방향" 한국법학원 (100) : 127-161, 2007

20 법무부, "개정 형사소송법"