수사 단서로서 고소ㆍ고발의 지위에 관한 고찰

Abstract

Among the clues of the investigation, the victim’s complaint is treated differently from other clues in the criminal procedure. The clues of other investigations are recognized and investigated when the investigative agency determines that there is a suspicion of a crime after going through a procedure to check the existence of a crime through the clues, but in the victim’s complaint the investigation begins immediately. In other words, it does not go through the step of internal investigation. The fact that the investigation is initiated immediately without going through the internal investigation stage, has led to a "overuse of complaints" for other civil purposes such as repayment of claims rather than pure punishment. This causes many problems in criminal proceedings and practice. In this regard, prior studies have suggested various improvement measures to resolve this phenomenon of abuse of accusations, and investigation agencies are also implementing some systems. However, in order to prevent the phenomenon of overuse of complaints, a more fundamental consideration of victim’s complaints as a clue to the investigation is necessary. I think, there seems to be no reason why victim’s complaints are treated more specifically than other investigation clues. In particular, we cannot agree on the view that victim’s complaints should be treated specially to protect victims. This is because, in criminal procedure, it is more rational that both victims who file a complaint and victims who have not filed a complaint should be protected to the same level. In comparative law, there are more legislative examples that do not specifically treat complaints and accusations than other investigation clues. Therefore, if the Criminal Procedure Act is revised in the direction of putting the charges and accusations in the same position as the clues of other investigations according to such legislation, a complicated logical structure centered on the screening system will not be necessary