검사의 수사권 제한 입법의 평가

Abstract

The Criminal Procedure Act and the Prosecutor's Office Act were revised on February 4, 2020 and May 9, 2022 each. These has greatly restricted the cases which the prosecutor can investigate on and prohibited the prosecutor's right to prosecute if it is the prosecutor himself initiating the case. Furthermore, The revision abolished the prosecutor's right to command the police, and limited the prosecutor's right to non-prosecution. Such legislation is unprecedented in countries that share similar criminal justice systems to Korea. Also, it contradicts the nature of investigation, which is the judicial action, and violates the constitution: a prosecutor's right to claim warrants, criminal victims' right to make statements in the trial process, criminal suspect's right to claim criminal compensation, which are violated if prosecutor's right to initiate or terminated the investigation are not guranteed. In addition, by granting unlimited investigative rights to the police, it has abolished the prosecutor's right to command the investigation, which is an efficient means to check the investigation process, and deprived the accuser of the right to object to the police's decision not to transfer the case to the prosecutor. Therefore made a country where police power overwhelms any others. This is without doubt against the democratic criminal justice system which has been developed through the April Nineteenth Uprising of 1960 against injustice and is a legislation that violates the fairness and efficiency of criminal justice. Therefore, legislation limiting prosecutors' right to investigate should be abolished, and instead, the authority of citizens' committee for investigation review should be strengthened and prosecutor's command of the judicial police should be restored. Also, all criminal cases should be closed only by prosecutor's prosecution or non-prosecution. It is necessary to abolish the Corruption Investigation Office for High-Ranking Officials, which will be hard to maintain it's political neutrality since it is targeting only corruption crimes in the job of high-ranking public officials, and instead, to cope with modern professional and international crimes, it is necessary to establish an independent professional investigation office in the Ministry of Justice. It is also necessary to establish a system to strengthen the efficiency of investigations: such as introducing plea bargaining which has been adopted by Anglo-American law countries, France and Germany, or punishing ones intentionally making false statements or destroying evidence by suspects or witnesses.