수사종결의 법적 성격에 대한 고찰 – 개정 형사소송법상의 불송치결정과 수사종결의 관계

Abstract

Control by due process shall apply to the exercise of discretionary powers concerning termination of criminal investigation. From the point of due process, the first thing to consider is not “who” exercised the right to terminate the investigation, but rather “what” is the termination of investigation and “how” to exercise the discretion to conclude the investigation. The termination of the criminal investigation means the formal and external conclusion of investigating agency that the investigation has been identified and terminated in the form of indictment or non-indictment disposition. It is a means to substantially control the exercise of the right to investigate and has significant impact on the basic rights of the parties, such as suspects, victims or complainants who participated in the investigation. The revised law abolished the judicial police officer’s duty to transfer all the cases to the prosecutor’s office. They only need to transfer the case when it was deemed to be charged with a crime. This is understood as judicial police officer now has the primary right to terminate investigation. However, as can be seen from the expression, according to the revised law, the decision to terminate the investigation becomes only provisional. The final resolution of the dispute will be delayed, and there is a risk that the problems of double investigations and repeated investigations will be aggravated. The likelihood that the constitutional rights of the people will be violated will increase. At the same time, there is a risk that no one will bear the ultimate responsibility for the termination of the investigation, resulting in the decision itself being forgotten in the whole criminal proceedings. Since the exercise of the right to terminate the investigation is not an area of exercise of discretion, revision of the provision of the Korean Criminal Procedure Code regarding the termination of the investigation should be reviewed.