형사소송법의 해석 방법론 - 법의 흠결 및 그 보충방법으로서 유추를 중심으로 -

초록

Criminal Procedure Law, along with criminal law, constitutes a core pillar of criminal law that supports the modern Rechtsstaat. Furthermore, the principle of due process of law in criminal procedure law, along with the principle of nulla poena sine lege, constitutes a core element of the rule of law. Both principles serve to protect citizens from the risk of violations of their fundamental rights due to the arbitrary exercise of the state's power to punish, both past and present. Despite the similarities between criminal law and criminal procedure law from the perspective of ideas or functions of law, their heterogeneity is highlighted from the perspective of legal methodology. That is, while the unique interpretation methodology of criminal law due to the principle of nulla poena sine lege is more prominent than in other areas of law, this unique interpretation methodology is less evident in criminal procedure law. Unlike criminal law, which emphasizes principles of clarity and prohibition of analogy, criminal procedure law does not fundamentally embrace these principles of interpretation. However, in terms of analogy as a means of gap-filling, criminal procedure law appears to differentiate itself from other areas and even resembles criminal law. Consequently, there has been ongoing debate over whether criminal procedure law shares the principle of ‘prohibition of analogy in mala partem’ emphasized by criminal law. Does the legal methodology of criminal procedure law possess unique characteristics that differentiate it from other legal fields? Furthermore, can its interpretation methodology be differentiated from that of criminal law? The interpretation methodology of criminal procedure law is no different from the universally accepted methodologies of statutory interpretation. Indeed, both classical and modern interpretation methods are widely utilized, and various interpretation techniques, such as analogy, are utilized without significant restrictions. In this regard, it is difficult to identify any characteristics unique to criminal procedure law that clearly differentiate it from other areas of law. But, it is inappropriate to uniformly apply general legal interpretation methods or methods of gap-filling to all criminal procedure provisions. For provisions of criminal procedure law closely related to constitutional principles or fundamental rights, such as the principle of due process and personal liberty, certain interpretation methods or techniques are prohibited or restricted due to legal restrictions. In this respect, the interpretation methodology of criminal procedure law is no different from that of criminal law. In short, the uniqueness of the interpretation methodology of criminal procedure law is proportional to the uniqueness of the interpretation methodology of criminal law. For example, in criminal procedure law provisions directly or indirectly related to the principle of nulla poena sine lege or due process, analogies in mala partem are prohibited. However, in the case of purely procedural provisions, analogies in mala partem are not prohibited solely because they are unfavorable to the accused or defendant. Therefore, the justification for prohibiting analogies in mala partem must be individually reviewed, taking into account the nature of the provisions of the criminal procedure law. Judges in Korea, while maintaining that the principle of nulla poena sine lege does not apply to the criminal procedure law, seem to hold that, in principle, gap-filling in law through analogy in mala partem is not permissible. However, courts are reluctant to acknowledge legal gaps in the criminal procedure law. In particular, even in cases where the gap in law is likely unintentional, they insist that it is an intentional gap resulting from the legislator's decision. In the rare cases where courts acknowledge a gap in law, they review the content and legislative intent of the relevant provisions, as well as due process principles, as key criteria for judging whether there is substantial similarity. However, the criteria for permitting analogies remain unclear. At first glance, courts appear not to seek appropriate interpretations within the criminal procedure law, but rather to seek justification for interpretations with a preconceived conclusion in mind. Consequently, it is difficult to predict when courts will deem a gap in law and when they will permit analogies. However, if no criminal procedure provision applies to a given case and the legislator's intent is not clearly established, there is no need to hesitate in acknowledging a legal gap. Of course, judges and judical officials must accept the legislator's intentional, fundamental legal policy decisions, even if they appear to be errors. Furthermore, even if the determining a gap in law and its gap-filling occur simultaneously, the appropriateness of applying analogies as a gap-filling method must be sufficiently justified.

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