검사의 형사사건 결정의 의의와 가치, 법체계에 대한 재구성

Abstract

The tendency that regards the prosecutor's judgement whether to prosecute criminal case as a termination of investigation was in the majority. Meanwhile, what discipline the prosecutor's decision was not law enacted by National Assembly but Prosecutor’s Case Regulation of the Ministry of Justice. This legislation and lawyer’s tendency are in a sense due to a failure to grasp sufficiently the intent and worth of the judgement about criminal cases by the prosecutor. We have ideologically maintained the system that embraces the handling of criminal cases as an important function of the nation and determination whether to prosecute as governmental institution’s declaration. For that reason, the prosecutor’s decision whether to prosecute is very significant among all aspects of criminal justice and should be distinguished from the closing of an investigation by investigative agency by not only meaning but also aspect of value assesment. Furthermore, it is necessary by way of breaking away from the existing understanding and legal system to ensure procedural justification and fairness in judgement about the prosecutor's decision whether to prosecute for establishing justice of criminal system. To do this, first of all, it is proper to regulate the entire process such as the procedures, requirements and the posterior judgement in detail by legislation enacted by National Assembly in this field.