경찰과 검찰간의 합리적 수사권 조정에 관한 쟁점과 논의

Abstract

With the "2009 Strategic Goals Amendment Legislation," as part of the amendment legislation submitted to the National Assembly in December of 2008, the police made official measures to revise the criminal litigation laws that stipulate police's investigative identity. It states, "With the dualism of police investigative jurisdiction and command structures there is inconsistencies in the law and reality, as well as authority and accountability; and with the prosecution's monopoly of investigative jurisdiction current conditions are running against human rights protection and investigative efficiency." The police also bring to surface in the legislation issues concerning the independence of police investigative jurisdiction, by unveiling the need for investigative rights coordination by stating, "Whereas in reality police detectives conduct 98 percent of criminal cases, the law only identifies prosecutors as party with investigative jurisdiction, which causes disconnection between the law and reality," and goes on to say, "stipulation of investigative identification is the precondition for correcting legal deficiencies that have led to police investigations to generally lack even legal grounds, apart from the investigative jurisdiction coordination issue." In this respect, this paper will revisit the investigative rights coordination issue and clearly identify investigative accountability as it is an imperative discussion in the aspect of protecting citizen's human rights, enhancing investigative transparency and equity, practicing genuine law-governed state principles, and bringing justice to criminal law investigations, aside from the issues of power-struggle about whether it is right to grant investigative jurisdiction to either the police or the prosecutors. In debating investigative jurisdiction coordination, this thesis will first limit crimes subject to investigative coordination to those under certain categories. This is based on the belief that it is better for cases undertaken directly by the prosecution and a certain range of serious crimes to be investigated collaboratively by both police and prosecution. Therefore, police will be given rights of investigation to initiate, proceed and conclude on certain crimes. For this end, we will start by exploring whether police have the legal basis with which to initiate investigations, proceed and conclude under current criminal litigation law. Thus, despite the fact that police is initiating and proceeding investigations within certain areas, if there are no legal bases for such actions, the scope of and limitations on investigation will be blurred rendering such actions illegal investigations. On these grounds, this thesis will present a rational theoretical model for legislation on the issue of investigative jurisdiction. Second, This study examine whether current criminal litigation law is equipped with proper devices to realize the rational investigative model. As there is no question that it would only be justified if it is to prevent concentration of powers, the basis for investigative coordination, and it is to create mutual checks and balances to achieve a law-governed nation in the true sense. Thus, current criminal litigation law should have systemic methods with which to prevent investigative abuse and ensure transparency and legality, and to eventually eradicate the risk of citizen human rights violations.