司法協助者의 刑罰減免制度의 節次的 透明性 確保에 관한 比較法的 考察

Abstract

Unlike crimes in which there is a specific victim, organized crime or those regarding corruption are conducted secretively in an organized fashion, and thus it is hard for people other than the accomplice to provide direct evidence for the crime or for law enforcement to expect the accomplice to testify even with the possible danger of self-incrimination. Furthermore, given that it is very difficult for the law enforcement to find out the truth without the voluntary cooperation of the witness, the fact that there is no way to forcefully find out the truth with the aid of systems such as those that may exempt witnesses from their punishment, there is no way to improve the transparency of the procedure for collecting evidence. Stated otherwise, it is crucial that witness immunity be adopted for increased transparency and accuracy during the process of collecting evidence. While there are related policies in today’s legislation such as suspension of indictment and exemption/reduction of punishment, they are not very effective and have restrictions in their application. Given such circumstances, it is noteworthy to study the different official methods for collecting evidence in exchange for immunity in various countries such as the U.S., Germany, France, England, and Italy in a comparative manner and apply it to implementing an effective evidence collecting procedure in South Korea as well. However, there has been criticism regarding the constitutional problems, strengthening of the prosecution-related powers, and the misuse of the investigating organizations regarding the above policy. This paper will thus discuss such criticisms and will give a detailed discussion regarding the need to implement such policies and methods for increasing transparency. Furthermore, the Ministry of Justice’s revised bill that is promoting the above policy under strict conditions will also be briefly mentioned. In addition, given that the witness may refuse to testify even though he/she has immunity, a way to indirectly force testimony like the contempt of court in the U.S., and need for other methods such as compulsory appearance, prevention of false statement and the obstruction of justice will be discussed.