공소제기의 무효

Abstract

Whether subparagraph 2, Article 327 of the Criminal Procedure Act should be applied or not sparks fierce controversy between prosecution and defense in many cases. Accordingly, various practical studies on such cases have been done so far. However, it seems difficult to actually find detailed theoretical and fundamental analysis on the matter of interpretation and application of the regulation. Understanding implications and range of application of the regulation is an indispensable, essential prerequisite for the issues presuppose invalidity of public prosecution, such as cure of defect or suspension of limitation period. This paper, therefore, attempts to clarify meaning of “Where the procedure for instituting public prosecution is void for violation of the provisions of statutes” by providing in-depth considerations of various procedural examples and legal rules. Specifically, it deals with the issue of distinction between compulsory provision and provision of instruction; analyzes whether violation of unwritten legal principle or Supreme Court rule shall be considered as “void for violation of the provision of statute”; sheds new light on paragraph 3, Article 4 of the Prosecutors’ Office Act therefore re-establishes its practical meaning; separates invalidity of prosecution from its nonexistence, focusing on the matter of proxy attendance and bill of indictment without seal and signature.