항소이유서제도와 항소심의 구조 - 항소이유서의 유효조건 해석을 통한 사후심으로의 전환 - (The Statement of Reason for Appeal & Structure of Appeal)

서지정보

· 발행기관 : 한국비교형사법학회
· 수록지 정보 : 비교형사법연구 / 10권 / 1호 / 337 ~ 363페이지
· 저자명 : 김봉수

초록

According to Art. 361-3, Our Criminal Procedure requires the appellant to submit statement of reason for appeal. The appellant has to submit the statement of reason for appeal within a given period of time and that statement have to be included a legitimate reason for appeal. Moreover Criminal Procedure set limits to reason for appeal to Art. 361-5. Consequently that statement’s formal conditions of validity are ⅰ) to observe the definite term to submit the statement, ⅱ) to write down a legitimate reason for appeal. If that statement does not satisfy two formal conditions of validity as a mentioned above, the court is to hand down ruling of rejection without reviewing the merits of the case as a general rule. In other word, two formal conditions is a necessary and sufficient condition.
But despite that statement does not meet the formal requirement, the court admits that the statement is a valid for appeal. In addition the court can review the case as far as the case involves the issues to be investigated reason for appeal. this attitude of the court imposes a heavy burden on the appellate court. This status quo has a connection with the structure of appeal.
In conclusion, To reduce a heavy burden of the appellate court, the structure of appeal is to be ex post facto inspection. In order to change over the structure of appeal to be ex post facto inspection, it is necessary to interpret strictly two formal conditions as a necessary and sufficient condition. Therefore if the statement of reason for appeal which the appellant submitted does not meet the formal requirement, it is desirable for the court to reject that appeal by means of that statement.

영어초록

According to Art. 361-3, Our Criminal Procedure requires the appellant to submit statement of reason for appeal. The appellant has to submit the statement of reason for appeal within a given period of time and that statement have to be included a legitimate reason for appeal. Moreover Criminal Procedure set limits to reason for appeal to Art. 361-5. Consequently that statement’s formal conditions of validity are ⅰ) to observe the definite term to submit the statement, ⅱ) to write down a legitimate reason for appeal. If that statement does not satisfy two formal conditions of validity as a mentioned above, the court is to hand down ruling of rejection without reviewing the merits of the case as a general rule. In other word, two formal conditions is a necessary and sufficient condition.
But despite that statement does not meet the formal requirement, the court admits that the statement is a valid for appeal. In addition the court can review the case as far as the case involves the issues to be investigated reason for appeal. this attitude of the court imposes a heavy burden on the appellate court. This status quo has a connection with the structure of appeal.
In conclusion, To reduce a heavy burden of the appellate court, the structure of appeal is to be ex post facto inspection. In order to change over the structure of appeal to be ex post facto inspection, it is necessary to interpret strictly two formal conditions as a necessary and sufficient condition. Therefore if the statement of reason for appeal which the appellant submitted does not meet the formal requirement, it is desirable for the court to reject that appeal by means of that statement.

참고자료

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