한․중 검찰제도 비교 연구

Abstract

The prosecutor’s authority in our country observing the principle of the separation of powers is an administrative agency while that in China is called as a “quasi-judical agency” by emphasizing its quasi-judicial authority especially. However, China has a political system, so called, the National People’s Congress as a power-centered system unlike our system. The National People’s Congress has a dominating position over the total structure of the national agencies. The Chinese national administrative, judicial and prosecution agencies are structured and superintended by the National People’s Congress and the Congress is responsible for those agencies. The national administrative, judical and prosecution agencies are established independently from each other under the National People’s Congress and each agency can exercise the administrative, judicial and legal superintendent powers respectively. That is, the prosecution agency is subordinated to the National People’s Congress, but it has a legal position as a parallel national agency independent from the national administrative and judicial agencies. On the other hand, our country’s prosecution has some characteristics also as a judicial agency considered the fact that the agency has the rights to investigate a crime, prosecute & maintain a case and execute a trial although the prosecution belongs to the Administration from the aspect of its structure according to the principle of the separation of powers. Since the prosecution system of China is a unique system representing the characteristics of the Chinese legal culture, to review the historical development process and characteristics of the prosecution system is meaningful to understand the historical necessity and realistic rationality of the Chinese prosecution system. Therefore, in this thesis, the development process of each prosecution system of South Korea and China and the development processes of the prosecution system before the modern era, the modernistic prosecution system and the current prosecution system shall be examined. And then, those development processes were compared and reviewed focusing on the prosecution structure and organization, the characteristics of the prosecution in both countries.