당사자주의와 직권주의 -2007년 형사소송법 개정 전후시기의 논쟁을 중심으로-

Abstract

This paper deals with the debate over the adversarial and inquisitorial systems in the criminal procedure reform of Korea in 207. It explores the contentions that argued which factors, the adversarial or the inquisitorial, were greater and more powerful in the Korean criminal procedure of 207, and thus intends to throw light on the backgrounds of this debate, because it shows the power strugles among the criminal justice agents, such as police, prosecution and court. In the debate some prosecutors argued that the then Korean criminal procedure was inquisitorial, and it was necesary for the prosecutors to have control over the investigation and, in some cases, even over the trial procedure, while many scholars, the Constiutional Court and the Supreme Court of Korea had a opinion that the criminal procedure was a sort of the adversarial system and the prosecutorial power should be reduced to such extent to filng and maintaining the oficial criminal cases. This debate had, at that time, practical meanings, rather than theoretical due to the fact that the result of which could have lead to the power-shift among the criminal justice agents, and have some implications for the future criminal procedure reform. First, we should always focus on the backgrounds of the theoretical debate and find out the practical meaning of the arguments. Secondly, we should also put more weight on the principle of checks and balances in the criminal justice system than the theoretical isues on its structure, and thirdly, we should make more eforts to devise efective mechanism for power control in the criminal justice system, because, in spite of fewer checks and balances, the criminal justice agents of Korea have much more power than normaly expected in the global standards.