법무부장관의 검찰총장 지휘․감독권에 관한 고찰

Abstract

Naturally a public prosecutor obeys command and supervision of the Minister of Justice, the highest supervisor in administrative organizational principle as it is one of administrative body under the Ministry of Justice. But a public prosecutor requires independence and political neutrality as a quasi-judicial organization which performs part of criminal justice function. So, the command and supervision right of the Minister of Justice to a public prosecutor is restricted unlike other command and supervision right of general administrative bodies. Namely, the Minister of Justice may command and supervise public prosecutors in prosecutory affairs but he may command and supervise only the Public Prosecutor General in a specific case. As a result, public prosecutors may maintain independence and political neutrality in handling a specific case with the Public Prosecutor General a shield. But if the Public Prosecutor General obeys the command and supervision right of the Minister of Justice blindly, the independence and political neutrality can not be maintained. That is because the Public Prosecutor General as the highest superior may command and supervise all public prosecutors. So, legislators should verify personality and belief of a recommended Public Prosecutor General through the personnel hearing before the appointment not to be swayed to unjust political influences and the tenure is guaranteed so as to work on convictions if appointed. As previously examined, public prosecutors can be classified as an administrative body in organizational aspect but have a character as a quasi-judicial body to solve legal problems based on legitimacy in functional aspect. The Public Prosecutor General is the highest superior of these public prosecutors. So, the command and supervision right of the Minister of Justice, a state position public servant should be at least minimized in that the subject is the head of public prosecutors who performs works with the truth and justice standard. And the command and supervision is necessary to perform the purpose of protection of legal order and human rights. Accordingly, the command and supervision rights of Minister of Justice to the Public Prosecutor General should be exercised within these purposes and should not be exercised for political purposes. Further, if there is any judicial control mechanism for the rights of prosecution, it should be done through such mechanism and the command and supervision rights should be used only supplemental ways in blind spots without a judicial control mechanism. Even if the Minister of Justice tries to command and supervise the Public Prosecutor General unjustly, illegally and improperly for political purposes, the Public Prosecutor General should not obey unconditionally. In this case, the Public Prosecutor General should protect the independence and political neutrality of the prosecution with personality and faith and prevent any influence on processing a specific case.