개정 검찰사건사무규칙에 관한 비판적 고찰

Abstract

Revised Regulations on Prosecutory Affairs(Ministry of Justice ordinance 2012) have some controversial items. So I try to review critically some issues of them. The basic issues are 1. the prosecutor's discretion on the complaint system, 2. the definition of preliminary probes, 3. the introduction of investigative case, 4. a range of application on Regulations on Prosecutory Affairs. And I conclude this article with the following opinions. First, I think that prosecutors have no authority to change civil petitioners' demand. Because current law doesn't give them this discretion. Second, I think that the definition of preliminary probe is the most disputable. Generally speaking, preliminary probe refers to any activities that prosecutors or police investigators confidentially performs to find out someone's criminal suspicion before charging or booking the suspected person. But according to the RPA, preliminary probe means the activities that prosecutors or police investigators performs to confirm the existence of crime. So I think that this definition of preliminary probe is inappropriate. Because it is too ambiguous to distinguish preliminary probe and ordinary investigation. Third, I think the introduction of investigative case is not a good choice. Because it is likely to cause confusion within the criminal justice system and increase the conflict between prosecutors and police. Finally, I think that RPA can be served as operational rule only within the prosecutors' office. It is unlikely to serve as a legal ground of criminal investigation by police because it is merely administrative rule of ministry of justice which do not have public effect.