내부증언자 형사면책입법의 필요성에 관한 연구

Abstract

In order to adequately cope with corruption, organized crime such as corruption, drug and organization violations, and to ensure efficiency of these criminal investigations, the Korean Government should refer to the foreign criminal justice system and enacted the criminal law and criminal procedure and submitted partial amendment of the Criminal Law and the Criminal Procedure Act to the 18th term National Assembly. Since these amendments were automatically abolished due to the expiration of the session of the 18th term National Assembly, the legislative efforts of the government to actively respond to transnational criminal organizations have been void and null. Now something important has happened to make change of the situation. On November 5, 2015, the government deposited not only UNTOC (United Nations Convention against Transnational Organized Crime; UNTOC) but also approval of three of annexed protocols make the agreement of UNTOC and annexes be effective as of December 5, 2015 in the country. This paper investigated introduction of criminal immunity system of Article 26 of UNTOC (Measures for Promoting Cooperation with Law Enforcement Authorities) in view of the observance and implementation of the international treaties. The author also examined the introduction of the criminal justice system for judicial coordinators and the possibility that the criminal immunity system in accordance with existing laws and regulations, criminal practices and even criminal law theories, since the essentiality of any system did not guarantee its legitimacy. First, from the substantive law point of view, the system to receive relief from the sentence based on the information of the crime of another (especially testimony in the court) does not exist in criminal law of Korea, but can be sufficiently considered at the general reason of sentencing. This system has already been legislated in Special Criminal Law, in particular, Article 16 of the Criminal Officer Act. Second, from the procedural point of view, it is possible to exempt criminal prosecution against an accused witness through prosecution of a probation postponement. That is to say, defeating crime syndicate immunity system is a criminal transaction between a criminal and a law enforcement agency that exchanges important information about crime facts and evidence and mitigates or exempts criminal punishment against information provider. The criminal justice in criminal procedure law is a key precondition. Since Article 247 of the Criminal Procedure Act recognizes the prosecution as a prerogative, the prosecutor does not have any legal problems in dismissing the court proceedings against the official witnesses at that discretion. Thus, it can be seen that the system of punishment and exemption of judicial cooperation (or internal witness) is not an unfamiliar system in criminal law system of Korea. However, the judicial promise, which does not exclude the need for exemption from the necessity, can be said to be question of the achievement of the purpose of the introduction of this system and the question of its effectiveness in which the court is not bound by the indictment. In such a case, it would be reasonable to put a prominent rule. The criminal immunity system of the internal participant, such as the waiver of the witness for the accomplice, will carry out the purposeful function regarding organized crime, but it has a direct relation with the interest of the crime victim to give effect to the important matters of the criminal procedure. It should be decided carefully considering the necessity of criminal exemption system, demands from the point of view of fair criminal procedure, and whether or not it conforms to the legal feelings and fairness of the general public. It is also important to strictly define the scope, procedure requirements, and effectiveness of judicial co-operatives' criminal immunity. In conclusion, in spite of the problems, introduction and enforcement of the criminal immunity system for judicial cooperators can also help prevent organized crime and to secure the objective reliability of the state authorities in relation to investigation and criminal prosecution. Therefore, in the case of some crimes including transnational organized crime, the introduction of criminal indemnity for judicial transactions upon request of the prosecutor and the order of the court, and the active use of the system for the crime of these crimes, It will be a measure to secure. Furthermore, now that this Convention and its annexed Protocols have entered into force in Korea, they are also bearing the burden of legislative action by the State for the observance and implementation of this international treaty.