사법경찰관의 수사개시권의 통제에 관한 연구 - 사법경찰관의 내사의 통제를 중심으로 -

Abstract

riminal Procedure Act raises the need to control the internal investigation of the judicial police. The right to start investigation refers to the judicial police's right to start investigation upon discovering a certain crime suspicion and charging (receiving) it as a criminal case according to criminal procedure. The judicial police's exercising the right to start investigation does not mean that the judicial police can proceed and close the investigation regardless of the prosecutor's right to direct investigation, as it means that the judicial police can start the investigation independently. The Article 196 of Revised Criminal Procedure Act is an article that clearly stipulated the prosecutor's right to direct investigation, while stipulating the judicial police's right to start investigation. Accordingly, the judicial police should not try to entirely exclude the prosecutor's right to direct investigation by widening the scope of its internal affairs to avoid the control of Criminal Procedure Act in regards to the stipulation of the right to start investigation in Criminal Procedure Act. Instead, the judicial police need to suppress the abuse of wrongfully exercising the right to start investigation that stem from excessive performance competition, and exercise self-control even when exercising such right and strive to rightfully exercise the right. Most of all, it is highly likely that the abuse of internal investigation can wrongfully restrict or violate the human rights of majority of good people, as it can easily lead to the abuse of the right to start investigation. Accordingly, it needs to be under legal control and become the object of the prosecutor's right to direct investigation. As for the method of internal investigation control of the judicial police, abuse of the right to start investigation can be prevented through the prosecutor's appropriately and effectively exercising the right to direct investigation. In addition, the rightfulness and legitimacy of internal investigation can be guaranteed only when the human rights guarantee of the internal investigatee and the overall ideology of Criminal Procedure Act are reflected in the internal investigation procedure, and fairness and objectivity need to be guaranteed also in the start and the procedure of internal investigation. Additionally, it is necessary to establish a clear basis for starting internal investigation, as well as establish a basis on the point of time of exercising the right to start investigation. The judicial police need to reflect to see if there have been any elements and issues on violating the human rights of internal investigatees during the past internal investigation procedures, and focus on fairly and reasonably exercising the right to start investigation for protecting the human rights and property rights of good people upon the establishment of enforcement decree that stipulates and materialize the right to start investigation in Criminal Procedure Act.