일본의 형사소송법제와 수사구조의 변천

Abstract

Korea’s amendment of theinvestigativepower has beenapplied since theDJ government without much progress. Last June, Moon Jae-in’s government looked to introducethe “Investigation Power Control” agreement by checking and balancing between the prosecution office and the police for thefirst time in 64 years after enacting the criminal law procedure. Japan’s criminal law procedure and its system are very similar to that of Korea and remains to havemany influences overthelatter. Also, studying how Japan solved investigatory authority affairs between the prosecution and the police after the SecondWorldWar by means ofinvestigation structure within Criminal legislation is meaningful both historically and comparatively. The management of thepre-war criminal law procedure which characterises Japan’s criminal action is an“Inquisitorial Prosecution Jurisdiction”. This valuesprocedures of investigation which are dominated by the prosecution official, which in turnmonopolises the rights ofaccusation. In orderto carry out the reformation of thecriminal jurisdiction after the Second World War, the General Headquarters (GHQ) constitutionalised and incorporatedAnglo-American law intoCriminal law procedures as a means of democratising Japan. However, there still existspre-war-like Continental law managent, jumbled with elements of Anglo-American law, causing various issues in its interpretation and management. GHQ’s key aimsin the reformation of theinvestigative agency in criminal law procedure can be epitomised in three points. Firstly, to apportionauthority between the prosecution and the police throughdemocratic principle. Secondly, to clarifyon thematter of responsibility and theprotection of human rights in the investigation. Thirdly, tocontrol the abuse of authority bythe investigative agency throughthe participation of regular citizens. Therefore, the authority to investigate and the right of accusation is separated, making the police the first responsible in charge, and thus makingthe prosecution deal with secondary investigations if necessary for the maintenance of accusation, both having cooperation liability. Accordingly, the police will havepractical influence corresponding with its responsibility, contributing to prevent human rights violations as well as bringing clarity tothe matter of responsibility. Furthermore, the foundation of the system of the Prosecution Judging Committee and the Public Safety Commission will ensured emocratic management of investigative agency.