수사권조정에 있어서 경찰의 송치·불송치 결정에 대한 몇 가지 문제점

Abstract

Investigation and prosecution are in line with the principle of separation of powers in the constitutional system. When implementing a separation of powers, a quantitative approach that simply means separation of institutions is not enough. It should be not a “horizontal power separation” that simply separates and distributes power, but a “power separation system” that requires control of “check and balance”. In other words, it is important to achieve a “balance of power” by mutually restraining national authorities so that national authorities are not abused by being concentrated on one institution. From the point of view of constitutional value, the basic direction of the amended criminal law is correct. The police are responsible for evaluating and responsible for the results of the investigation, from the start of the investigation to the progress and termination of the investigation. The prosecution is expected to play the role of a neutral controller and a fair and objective prosecutor through a second inspection of the police investigation. Revised Criminal Procedure Act basically gives the police the primary right to terminate investigations and gives prosecutors the role of ex post control. However, if we go into the detail of the investigation, there seems to be a problem that has not yet been exposed. We investigated whether the authority distribution of the police and the prosecutors' authorities are properly conducted in the initiation, progress, and termination of the investigation, and whether there are any expected problems. During the investigation, various discussions were made on the issue of competition between the police and the prosecution, the prosecutor's control system for the police investigation, and the police's decision-making system. Deployed. The fact that the nature of the police's decision to send or refusal is a provisional disposition, as a way to solve the problems that can be derived from the decision to send a refusal, to secure the effectiveness of the prosecutor's request for re-investigation, and It was suggested to utilize the system, expand the investigative examiner system, and establish an investigative review committee. The police, which have become more autonomous in investigating, will have to prepare various systems and measures to defend human rights in the investigation process.