피의자의 수사기록 열람·등사권의 헌법적 권리성

Abstract

The accused person’s right to read and copy the record of criminal investigation as constitutional right Ryu, Je-Sung※ The criminal procedure law revised June. 1. 2007 provides that criminal defendant and his lawyer have the right to read and copy the record of criminal investigation. It is basic human rights derived from constitutional right to have a speedy and fair trial, legal hearing right came up with the right to have a fair trial, the right to have one’s lawyer, lawyer’s right to help his client corresponding to the former, and presumption of innocence. And as realization principle of the right to have a fair trial, substantive adversary system and Principle of Court-oriented Trials provide a theoretical basis for the need of acknowledgement of the right to read and copy the record of criminal investigation. And objective obligations of prosecutor regulated by the criminal procedure law do too. By the way because the time of the reading and copy of record of criminal investigation is limited after prosecution, under existing law, it can be interpreted that an accused person does not have such right. But predicating upon the constitutional criminal procedural law theory, whether or not recognizing the right to read and copy the record of criminal investigation should be decided not by substantive enactment but by constitutional value of guarantee of defence right. Today procedure of investigation is not just a preparatory stage of procedure of trial. In fact it influence gravely the procedure of trial. So defence right of accused person should not be treated lightly than that of criminal defendant. And because the guarantee of defence right of accused person is directly connected to that of criminal defendant, the distinction of the two is not reasonable. For actual guarantee of the right to have one’s lawyer and the presumption of innocence, the right to read and copy the record of criminal investigation should be acknowledged at the stage of investigation. Besides as the legal basis of acknowledgement of criminal defendant’s right to read and copy the record of criminal investigation, the principle of court-oriented trials, substantive adversary system and objective obligations of prosecutor provide the basis of acknowledgement that of accused person. Therefore an accused person’s right to read and copy the record of criminal investigation has nothing to do with substantive enactment. It is basic human rights acknowledged by the constitutional interpretation.