검사의 지휘를 받지 않는 경찰수사의 위헌성

Abstract

Article 27 (1) of the Constitution stipulates that “All citizens shall have the right to be tried in conformity with the Act by judges qualified under the Constitution and the Act.” The right to a trial by law is guaranteed as a fundamental right under the Constitution. In order to restrict these fundamental rights, it is necessary to comply with the limits of the restrictions on fundamental rights stipulated in Article 37 (2) of the Constitution. On February 4, 2020, the Criminal Procedure Act was revised, and from January 1, 2021, judicial police officers can investigate independently without being directed by a prosecutor. However, if the police independently investigate without being under the direction of a prosecutor, their investigative activities infringe on the ‘right to a trial by a judge’ and ‘right to a trial by the law’ guaranteed by the Constitution, and The provisions of the Criminal Act, which stipulates an independent investigation, also violate the provisions of Article 37 (2) of the Constitution and are highly likely to be unconstitutional. Therefore it is necessary to promptly revise the Criminal Procedure Act, which has such unconstitutional elements. However, the National Assembly does not recognize the unconstitutionality of the current Criminal Procedure Act, and rather is pushing for legislation to establish the Criminal Investigation Agency. It is highly likely that the investigative officers of the Criminal Investigation Agency will also be able to investigate independently without being under the direction of the prosecutor. In this regard, we want to examine the meaning of the constitutionally guaranteed ‘right to trial’ and why the independent investigation of the police infringes on the right to a trial, unlike the investigation of the prosecutor or the investigation of the police under the direction of the prosecutor.