공수처검사의 소송법적 지위와 영장청구권

Abstract

The Act on the Establishment and Operation of the Corruption Investigation Office for High-Ranking Officials (hereinafter referred to as the “CIO Act”) stipulated the right to indict more narrowly than that of investigation. After this, disputes may arise over regarding the legal status of the prosecutor of the Corruption Investigation Office for High-ranking Officials (hereinafter as the “CIO prosecutor”) in cases where they lack the right to indict, specifically whether they have the authority as a ‘prosecutor’ to request a warrant as provided in Article 12, Paragraph 3 and Article 16 of the Constitution (hereinafter as “constitutional prosecutor”). Some argue that in cases where the CIO prosecutor has the right to investigate but not the right to indict, he/she may not be considered a ‘constitutional prosecutor’ and cannot request a warrant. However, the CIO is a prosecution body, and its prosecutor should be regarded as a ‘constitutional prosecutor’, because the CIO prosecutor holds the same legal status in the Criminal Procedure Act as the prosecutor of the Prosecutors' Office. (hereinafter as “PO prosecutor”). First, the Constitution designates the officer with the right to request a warrant as a ‘prosecutor’ to strengthen control over the legality of compulsory investigations by a legal expert in the prosecution body. In this respect, the CIO prosecutor is the same as the PO prosecutor, and also has the right to request warrants for investigating crimes within its jurisdiction as a ‘constitutional prosecutor’, regardless of the right to indict. Secondly, there is no distinction in the Criminal Procedure Act between the prosecutor of the CIO and the PO in terms of their legal status as a ‘prosecutor.’ For example, to ensure the suspect's rights, the detention period of the prosecutor (Articles 203 and 205 of the Criminal Procedure Act) should be also applied to the CIO prosecutor. In the event of case transfer (Article 24 of the CIO Act) between CIO and PO, the detention periods of both PO and CIO prosecutors should be combined.