검사의 客觀義務와 檢察改革의 바람직한 방향

Abstract

Prosecutional power is in inclusion of administrative authority; however, in terms of the content, it has a great deal of relation with judicial power. Therefore, public prosecutor’s holds twofold positions of administrative and judicial agencies, which reflects a quasi-judicial characteristic of prosecutor. Consequently, public prosecutor’s has obligations to pursue truth in the perspective of a judge and fulfill the justice at the same time. If the quasi-judicial position exclusively emphasized, justification to encourage prosecution authority possibly arises. With the intention of preventing from the occurrence, law restricts the degree of authority for prosecutor to maintain an objective attitude. The following paragraph would discuss whether objective obligations are applied to prosecutor, as in Germany. Although these objective obligations are originated from an ideological discussion in Germany that continues the tradition of 'verism=offizialprinzip,' Korea, with an emphasis on 'adversary system,' is able to draw a rational conclusion. Law in Korea, especially, has a detailed understanding on an exclusive acknowledgement of 'warrant application form' to prosecutor according to the constitutional view on the foundation of objective obligations. It additionally reinforces command and control on the judicial police, restrains the abuses of arraignment(prosecutorial) right in order to protect advantages of the suspect and the accused during the trial, relatives prosecutorial right for the benefits of the victim with the expansion of evidence submissions and the degree of disclosure, and underlines duty of explanation. In consequence, correction of prosecutor is required since a status of public prosecutor’s in respect of legal procedure law should be regarded safeguard for human rights for the defender, suspect/the accused/victim and any other concerned in the process. To achieve the purpose above, objective obligations of prosecutor should include 1) A rational allocation of roles of police and the prosecution concerning criminal investigations, 2)A correct understanding on 'quasijudicial position' where confusion exists in use of term and institutional establishment to reflect the correction; in other words, a discussion on abuses of prosecutorial right unjustly as in 'deterrence theory' 3) a discussion on obligations of submissions of evidence to expand the suspect/accused's right to defense and disclosure of evidence, 4)a discussion on whether to adopt grand jury of the United States or prosecutorial review commission of Japan.