사법방해죄의 입법화방안

Abstract

Under circumstances mentioned above, there needs to consider the introduction of Obstruction of Justice, one of the discussed things, with a view to strengthen the strictness. After the impeachment of W. J. Clinton in 1998, charging the obstruction of justice, Korea started to be concerned about it. Sometimes, the celebrities are guilty in obstruction of justice and this can show a lot of interests to people. Actually, Korean Criminal Law has the rules on ‘Obstruction of Performance of Official Duties(Article 136)’, ‘Escape and Violation of Summoning Order(Article 145)’, ‘Special Escape(Article 146)’, ‘Helping Escape(Article 147)’, ‘Perjury, Malicious Perjury(Article 152)’, ‘Destruction of Evidence, etc. and Special Exception to Relatives(Article 155)’, ‘False Accusation(Article 156)’, and these statutes are essentially in the boundary of Obstruction of Justice. And there is a controversy on this subject that the possibility of punishment of ‘False Statement of Suspect and Witness’ and the possibility of punishment of ‘False Presentment’. There are some reasons about these facts. As long as the accused’s rights are guaranteed, they try to state false and hide the truth. For the Investigators, like the police and prosecutors, which take it a duty to find the suspects, sue the accused, find the truth and punish them, it is too hard in doing fact-finding that they have no choice but to focus the witness’ statement, even if how hard they try to tell the false. While Perjury shall be punished by the Criminal Law Article 152, false statement at investigation can not be punished. And there needs to adopt a mandatory investigation because a witness will not attend the investigation. ‘The Law Perversion’, which means perverting the laws that the subject of criminal justice should apply and execute legitimately, is included in obstruction of justice in ‘Abuse of Authority(Article 123)’, ‘Unlawful Arrest and Unlawful Confinement(Article 124)’, ‘Violence and Cruel Act(Article 125)’. As the accused can be a obstacles in criminal justice, the subject of criminal justice naturally be the same. So, the act of perversion of law need to be punished in fairness of criminal justice. Hereinafter, there will be the consideration about necessity of obstruction of justice, false statements for the fact-finding in criminal process, and the boundary of punishment, legislation’s style and so on.