사법경찰관의 피의자 신문시 ‘참여’의 법적 성질에 관한 연구

Abstract

According to the Criminal Act Law Article 243, "A judicial police officer shall have another judicial police official present at the place when he or she interrogates a suspect.". Despite this Article, police investigation divisions used to make it a common practice to let judicial police officers interrogate the suspect alone and let a fellow officer write his or her signature as participated later, due to some reasons such as manpower shortage. However, recent presidential decree of investigation regulation specified the participation method of participants in video recording as "attendance at the place". But this regulation is so far removed from the reality of practical investigation, that it becomes rather an obstacle to establish the new system to achieve transparent and objective investigation. In this aspect, this study attempted to examine the legislation procedure of Criminal Act Law Article 243 historically, then analyse its relevance to other laws and comprehend the "legal character of participation of judicial police officials when interrogating". First, considering the role clerks of public prosecutor's office played by the time the Criminal Act Law was enacted, it can be deduced that the purpose of the Criminal Act Law was not only to give the participant a mere recording role but to let the participant act in a more active role as an investigation assistant in the public prosecutor's investigation. Given the fact that the investigators used to record their interrogations themselves without a separate person to record them, especially judicial police officials interrogating suspects, the significance of “interrogation participants in a sense of recording duty” seems more and more meaningless. Also, according to Criminal Act Law Article 312, the prepared police protocol can be a debatable object in the area of evidence admissibility, in which it is decided whether or not the procedure of drawing up a protocol of suspect interrogation and the method that was used were legitimate. Considering the fact that, different from the protocol prepared by public prosecutor, the protocol prepared by judicial police officers can be ruled as inadmissible as evidence if the suspect at the time or his defense counsel denies its contents, it does not seem to result in a great flaw in the procedure, if the protocol was formed via methods such as video recording, not to have the signature of a participant. In this aspect, the investigation regulation and criminal investigation rule that demands participants "to attend at the place" needs to be revised in accordance with the interpretation of Criminal Act Law Article 243.