검사의 직접수사의 개념과 수사지휘와의 관계- 비교법적 관점에서 본 수사와 기소 분리의 허구성에 대하여 -

Abstract

Although it does not mean that the Prosecutor’s command and supervision has complete control over all investigative activities of judicial police officers, the prosecution effectively misuses all investigative rights of the police officers. As a result, prosecutors often call the issue of investigative command an authoritarian way of thinking, “The prosecution controls the police and the police obey the prosecution.” But the prosecution's power to exercise its right to investigate and prosecute is its active right to initiate criminal proceedings and take legal action to determine whether or not to punish criminals. Most crimes have criminals on one side and most of them have a criminal offender on the other, so a sharp understanding is given to the existence of the crime between the two, the amount of guilty and innocent punishment found in the case. Accordingly, it is necessary to have a “judicial ideology” to establish a definition not only in the trial but also in the whole area of investigation and prosecution, based on the discovery of the truth and fairness of the non-liberal parties. Thus, in the Continental legal community, not only the trial but also the investigation and prosecution have been included in the judicial system. In other words, the system of the prosecution was introduced after the French Revolution on trial, investigation and prosecution, which all judges controlled during the Inquisitionsprinzip, to introduce the same judicial official as judges to carry out investigation and prosecution. Accordingly, it is not the case that we should not miss when discussing the issue of investigative rights, but rather that the public prosecutor, who is in charge of the law enforcement authority, is in charge of the public security. However, the issue of investigative authority should not be viewed as a matter of national authority but rather as a matter of whether the prosecutor's command and supervision contributes to the protection of the public’s human rights or is it beneficial to the realization of criminal justice. Whatever term you use (such as investigative command or judicial control) the issue of investigative rights is not just the division of authority between the prosecution and the state agency of police, but the case is controlled by a “law police individual”. In the end, the prosecution’s reform plan should find a solution in reconsidering the nature of the nation’s prosecution's lost legal character. A simple administrative authority, including the prosecution of the administration's leader because of the thought of as a president or a hand or foot of the Minister of Justice and act like. If the prosecutors are just superior’s orders to obey passively, not judicial ideology called to the full commitment to fair and neutral definition to exercise their rights. And this would mean nothing more than a recovery of the prosecution's legal character through the separation of “investigation” and “prosecution” but “direct investigation” and “prosecution.”