검찰에 대한 불신과 신뢰의 뿌리 - 당사자주의와 직권주의의 재조명 -

Abstract

Presidential candidates made a public commitment of the prosecution reform, which became a national concern and a national agenda. But prosecutors do not feel it. Rather, the prosecutors claim the magnification of the prosecution authority. They claim that the prosecution is quasi-judicial agency based on the inquisitory system. The regressive nature of the claim raises a serious problem. The prosecution reform should be based on the principle of the check and separation of the prosecution rights, which includes the abolishment of the central investigation agency of the supreme prosector's office, separation of the investigation and the prosecution and the control of the prosecution by the Minister of Justice. But the prosecutors just only argue the reestablishment of the past theory, that the prosecution is a quasi-judicial agency based on the inquisitory system. The problem is that the above theory has made the current situation of the prosecution as the mistrusted prosecution. Therefore the theory that the prosecution is quasi-judicial agency based on the inquisitory system should be thoroughly criticized, reexamined and abolished. In this paper, I argue that the theory that the prosecution is quasi-judicial agency based on the inquisitory system is not only wrong but also unuseful. The prosecution is not an unique institution seperating itself from the other national institutions. Fundamentally it is one of the national institutions which should be under the control of rule of law. The objective obligation that the prosecutors should investigate the advantageous points of the accused is not the prosecutors' unique duty but the general obligation of the civil servants. The theory that the prosecution is quasi-judicial agency based on the inquisitory system denies the rights - subjectivity of the accused. On the contrary, the adversary system stresses that the prosecutors and the accused are equal in the criminal prosecutors because the prosecutors are on behalf of the citizen and civil society. Further, the adversary system checks the exercise of the prosecutors power based on the rights of the accused, which is denied in the inquisitory system. The development of human rights and democracy is the foundation of the adversary system. The prosecution reform should be accomplished based on the adversary system not the inquisitory system.