헌법재판소의 결정이 검사기소권 등에 미친 영향* - 지난 20년간의 헌법재판소 결정례를 중심으로 -

Abstract

The Constitutional Court established at Sep. 1988 in Korea. It has made a significant contribution to the extension of the human rights during last twenty years. In this article, I will study on the decisions of the Constitutional Court about the criminal procedure, especially the right to prosecute of public prosecutor. Our Criminal Procedure Act(CPA) adopts a principle of public prosecution by the state, a principle of monopoly prosecution by public prosecutors and a principle of discretionary prosecutions. According to Art. 246(CPA), "Public prosecution shall be instituted by a public prosecutor." And according to Art. 247(CPA), "A public prosecutor may decide not to institute a public prosecution after considering the matters prescribed in Article 51 of Criminal Act." By the way, the Constitutional Court decided that a disposition not to institute a public action suspension of a public prosecutor is subject to adjudication on a constitutional complaints and if it is arbitrary, it is a violation of the constitutional fundamental rights - Art. 10(the right to pursue happiness), Art. 11(the right to equal before the law), and Art. 27(the right to petition in writing to any governmental agency under the conditions as prescribed by Act) etc. Also, the Constitutional Court decided that a disposition to stay the public prosecution and a disposition to suspend the public prosecution are the same as that. The upper decisions of the Constitutional Court have an important effect on the dispositions of public prosecutors on the cases charged. After all, CPA(Art. 260), revised at 2007, allowed complaints to applicate for a ruling on the every crimes of the Crime Act when they are notified that the competent public prosecutors will not to institute public prosecutor.