형사소송의 구조와 검사, 피고인의 지위 - 당사자주의와 증거개시제도를 중심으로 -

Abstract

In the aftermath of the investigation and suicide of the former Korean President Roh Moo Hyun on 23. May, 2009, the Korean prosecutors office came under cross fire. Many critics say repeatedly the prosecution in Korea has a tremendous and uncontrolled power, and that its function and power should be reformed and restricted. This paper explores the adversary system in England, and USA, in order to analyse the structure of Korean criminal procedure. With the revised criminal code of 2007(effective on 1 Jan. 2008) it is safe to say that the Korean criminal procedure reinforces the adversary system in principle. It is a position that the Constitutional Court and the Supreme Court of Korea took even before the revision of 2007. The paper considers whether the adversary system is in conflict with the quasi-judicial position and impartiality duty of the prosecutor codified partially in the Prosecutors office act. The prosecutor is a party at criminal trials confronted with the defendant and his/her counsel. Nevertheless the duty of the prosecutor is to pursue the public interest, which is realised when a actual criminal is punished, and not when an innocent is convicted and punished. So the prosecutor is a party in criminal trials and at the same time an administor of the public interest. This theory is affirmed in famous cases in the USA, such as Brady v. Maryland, and Bagley case. The prosecutor is a quasi-judicial officer, with a duty to seek impartial justice, to see that no innocent man suffers and no guilty man escapes. At a high profile trial named Yongsan reconstruction death case in 2009, the korean prosecution refused to provide some 3,000 pages of investigation records which were regarded to be favourable to the defendant, even the court ordered it to discover to the defendant. The author asserts that is a serious violation of the constitutional right of due and fair process of law, and demands a revision of the criminal code to authorise a dismissal of case, contempt proceeding, and/or prohibit the testimony of a witness or the presentation of real evidence, in addition a comprehensive reform of the prosecution including reform the appointment procedure of the Attorney General and and function of the prosecution.