수사기관의 내사에 관한 연구

Abstract

Preliminary investigation refers to an investigative activity confidentially executed by investigative agency prior to the crime awareness(book) for checking investigatee’s criminal charges. Classification between preliminary investigation and investigation is divided into substance theory and legal form, but from the aspects of securing investigatee’s human rights and justification of preliminary investigation, substance theory is more likely to be appropriate. Classification between preliminary investigation and investigation is essential for legal regulation of preliminary investigation, protection of investigatee’s human rights and guarantee of defensive right, secure of legitimacy and justification of routine investigation as well as classification of investigative method. Problems of current preliminary investigation are that the legal basis for preliminary investigation in unclear, possibility of the infringement of investigatee’s human rights is still in existence in the course of preliminary investigation process, preliminary investigation is lacking in legal regulation and investigative agency lacks a sense of preliminary investigation. Measures of legal regulation for preliminary investigation include change of investigative agency’s perception toward preliminary investigation, exhaustive observation of objective obligation, fairness, reciprocality and proportionality and faithful realization of instructive philosophy of the Criminal Procedure Code in the course of preliminary investigation process. And legal basis for preliminary investigation must be clearly prepared as well. For legal regulation on the preliminary investigation by police, exercise of the prosecutors’ right of command on the investigation must be possible in respect of substantive investigation which is possible to be decorated as an preliminary investigation ahead of the book and legal regulation on the preliminary investigation by policy must be substantially possible through supplementation of Article 18 of the enforcement ordinance and its rational operation. And the prosecution must strengthen the preliminary control on its own preliminary investigation by oneself and pay close attention to the preliminary administrative audit, inspect of the government offices and thorough implementation of post censorship by the power to investigate government administration. In addition, role of surveillant by indirect control by the media source, post censorship by the court as well as faithful role of legal regulation are also required. More than anything else, investigative agency must take efforts to change its perception to protect investigatee’s human rights and academic circles are also required to strengthen the theoretical basis with positive interest and active researches on preliminary investigation.