객관의무의 구체화와 검사의 권한통제

Abstract

The prosecutor is the sovereign institution with strong power in criminal procedure. Prosecutors have right of investigation, indictment and enforcement of trial in criminal procedure. Especially, prosecutor’s right of investigation and indictment is the strong power to restrict citizen’s freedom in the viewpoint of punishing power of the sovereignty, in parallel with the jurisdictional right of the Court. However recently, such powers of prosecutor are regarded as the subject to be controlled. Furthermore, it is also a problem that there are no proper alternatives available to control and contain the powers of prosecutors. Existing alternatives are not suitable to become reasonable measures due to the concern that another powered institution may be created thereby. Therefore, it is regarded that the measures to control prosecutor’s powers need to be pursued internally within the Public Prosecutors’ Office. In other words, it would be meaningful to introduce stronger responsibilities and judicial control on breach thereof as the internal control measure, rather than by check and balance by other institution as external control. In this perspective, this study intends to focus on objective responsibility of prosecutors. Prosecutors are subject to objective responsibility while having strong power in their status as representatives of public interest as well as the advocate of human right. If objective responsibility can control prosecutors’ powers, this responsibility may be regarded as the internal control measure sufficiently workable. The problem with this alternative is that the concept on objectivity responsibility of prosecutor is not clearly established in legal procedure law, hence the scope thereof is only limitedly acknowledged and judicial control is in weak situation on breach thereof. Henceforth this study clarifies the concept of objective responsibility, expands and strengthens the scope of acknowledgement thereof, and provide the sanctions on breach thereof, so that objective responsibility of prosecutor is confirmed as eligible to become the internal control measure of prosecutors’ powers.