Search

Reopening of criminal proceedings is a legal way to examine the factual basis of a final judgment based on an extraordinary legal remedy. The examination of the factual basis of the final judgment is initiated by the submission of a request for reopening the proceedings. This extraordinary remedy was established with the aim of establishing the truth in the criminal procedure, and is contrary to the principle of ne bis in idem. The factual deficiencies of a final judgment are remedied on the basis of new, or newly discovered facts, or evidence that arose after the finality of the judgment. Article 473 of the Criminal Procedure Code envisages the reasons for repeating the criminal proceedings. They can be grouped in various ways. One of the groups includes new facts and evidence, as a reason for repeating the proceedings. First of all, there are new facts and evidence that per se or in concert with other evidence may lead to a acquittal, or a repudiation judgment, or condemnation on a more lenient law (Article 473, para. 1, point 3 of the CPC). This group also includes new facts and evidence indicating that the defendant did not commit any of the actions of an extended criminal offense, or other offence, which includes several acts (Article 473, para. 1, point 5 of the CPC). The new facts and evidence, which would lead to a milder criminal sanction, are another reason that we classify in this group (Article 473, para. 1, point 6 of the CPC). Finally, there are also new facts and evidence that the defendant was not properly summoned for the main trial, which was held in his/her absence (Article 473, para. 1, point 7 of the CPC). Compared with the procedural laws of other states, our CPC provides a lot of grounds for reopening the procedure. In this way, an adequate legislative framework was provided for making a more favorable decision on the defendant in the procedure for this extraordinary legal remedy. Although the envisaged grounds for reopening criminal proceedings constitute a satisfactory basis for instituting proceedings under this extraordinary legal remedy, further clarification de lege ferenda is necessary. Our procedural law prohibits reopening criminal procedure to the detriment of the defendant. The prescription of the repetition of the proceedings to the detriment of the defendant, in some future revision of the procedural code, would not be contrary to the Constitution, except that, in the case of the merits of the request, the outcome would have been the adoption of the declaratory judgment. There are also interpretations that the Constitution allows both the conduct of the proceedings and rendering the decision at the detriment of the defendant in the procedure for extraordinary legal remedies. In that case, in the future, a reduced number of grounds for reopening the proceedings should be envisaged at the detriment of the defendant.

El artículo analiza la revisión de las sentencias condenatorias firmes, restringiéndose principalmente a la causal letra d) del artículo 473 del Código Procesal Penal. Sobre la base tanto de un estudio conceptual relativo a la regulación legal vigente, como empírico a la luz de la aplicación de la disposición que se comenta, los autores dan cuenta de dos tipos generales de problemas: de diseño legislativo y de interpretación jurisprudencial. Se destaca la necesidad de diferenciar adecuadamente los requisitos que hacen procedente la acción de revisión, proponiéndose cual debe ser la interpretación correcta.The article analyzes the wrongful conviction claim, primarily the provision letter d) article 473 of the Chilean Code of Criminal Procedure. On the basis of a conceptual study concerning the current legal regulation, and a empirical study in light of the application of the provision discussed, the authors account for two general kinds of problems: of legislative design and judicial interpretation. It stresses the need to properly differentiate the requirements of the wrongful conviction procedure, proposing an interpretation that should be deemed correct.

我國智慧財產法院即將在2007 年3 月成立，依司法院所公布智慧財產法院組織法草案及智慧財產案件審理法草案內容觀之，其中牽涉商標、專利行政訴訟審理變動較大者，為智慧財產案件審理法草案第33 條第1 項之規定。該條項關於撤銷、廢止商標註冊或撤銷專利權之行政訴訟中，當事人於言詞辯論終結前，就同一撤銷或廢止理由提出之新證據，智慧財產法院應由實體加以審酌之規定，改變了向來行政法院於行政訴訟中，對所提新證據不予審酌的傳統實務見解。此部分法制之變更，對行政訴訟審理運作將有何影響？應為從事實務工作者所關心。本文分就商標、專利行政訴訟現制與未來 新制規定作一介紹，併就可能之影響作一初步分析，期能有助從事商標、專利行政訴訟實務工作者對新制發展的瞭解。 Intellectual Property (IP) Court is planed to be established in March 2007 in Taiwan. Reviewing the draft of IP Court Organic Law and the draft of IP Trial Laws published by Judicial Yuan, it is clear that the paragraph Ⅰof Article 33 of IP Trial Law will become the most influential factor in IP trials. Under the current law, the administrative courts are not required to consider the new evidences the party submitted based on the same reason to revoke or repeal trade mark right or patent right after the decision made by the IP Office. However, according to the draft, those evidences should be taken into consideration by IP Court before the conclusion of oral proceedings at trials. The new law will change IP trials crucially. This report wants to introduce this change and evaluate how it will influence the legal system. By comparing the two systems and pointing out the differences, this report wants to provide a general understanding of the drafts as well as the new changes for IP practitioners.