독자적 경찰수사의 사법권 침해에 관한 연구 - 헌법 제101조 제1항 위반을 중심으로 -

Abstract

Our Constitution adopted the principle of separation of powers and granted exclusive and comprehensive judicial power to the courts. Accordingly, in principle, state agencies other than the court can not exercise judicial power, nor can they exclude or control the exercise of judicial power by the courts. However, if there is a written provision limiting the judicial power of the court in the Constitution, or even if there is no explicit provision, if the Constitution is interpreted that the Constitution is intended to limit the judicial power of the court, the judicial power of the court is limited within the limit. In relation to criminal procedures, investigations and decisions by prosecutors and police can be actions that exercise judicial power and exclude the exercise of judicial power by the court. Although there are no explicit provisions in the Constitution for prosecutors to investigate and decide whether to prosecute or not, it is interpreted that the Constitution plans limiting the judicial power of the courts and is consistent with the constitutional order. On the other hand, the police investigation and the decision on whether to send the case are unconstitutional, as there are no written provisions in the Constitution and they are not interpreted as limiting the judicial power of the courts as planned by the Constitution. With the revision of the Criminal Procedure Act in 2020, the police were given the authority to independently investigate and decide whether to send the case independently. This infringes on the judicial power of the court as the police, which is an administrative agency, exercises the judicial power to find facts and declare the law, and to exercise the power to exclude the exercise of the judicial power by the court. Therefore, the National Assembly needs to promptly amend the provisions of the Criminal Code that allow administrative agencies to infringe on judicial power against the principle of separation of powers in the Constitution.