수사단계의 적법절차원리에 대한 고찰 -사실상 수사로서의 행정조사를 중심으로-

Abstract

Recently, an administrative investigation is replaced with the criminal investigation by police and prosecutors in diverse and specialized fields such as economy, medicine and taxation as it would be more efficient and effective. However, although administrative investigation is effectively replaced to criminal investigation in reality, due process of law to the extent of that in criminal investigation doesn't apply to administrative investigation. Based on the relationship between criminal investigation by a police or the prosecution and administrative investigation, this administrative investigation could be categorized by three types: integration model, cooperation model and separation model. Firstly, the integration model means administrative public officers are invested with authority on the challenged issue, then stand in police investigation and examination of the prosecution in law. Secondly, the cooperation model means that administrative investigations are legally separated with police investigations and examination of the prosecution, but functionally related with them. Lastly, the separation model means that administrative investigations are separated with police investigations and examination of the prosecution functionally as well as legally. The embodiment of Principle of Due Process of law is likely to depend on the type of administrative investigation. In the integration model, due process of law is embodied as the extent to that of criminal investigation. In the cooperation model, it is not easy to set up the extent of embodiment of Principle of Due Process of law as the administrative investigation is both administrative process and criminal process. Due process of law should be embodied to correct asymmetrical relationship between regulator(administrative agency) and the regulated in cooperation model. In the separation model, It is not worth to assure procedural rights as well criminal investigation, but to restrict procedural rights due to cost and time efficiency.