일본 당사자주의론과 그 정책적 시사점

Abstract

This paper deals with the history of adversarial theories in Japan after World War II and explores its implications to Korean criminal justice system, for the future reform in Korea. Since the criminal justice systems of Korea and Japan are very much alike, in that the prosecutorial power and discretion are great and the trial procedures are strongly influenced by protocols made by the prosecutors. In this context, and for the empowerment of the accused, Japanese adversarial theories usually lay emphasis on the regulations of the prosecutorial power, and on the control over the protocols. Thus their attainments could be useful examples or models for criminal procedure reform of Korea. The followings are suggested as conclusions. First, in the reform-oriented approach to the criminal procedure, priority should be given to improvement of civil liberties and rights protection, according to the spirit of the Constitution of Korea. Secondly, we should work out more efficient ways of power control mechanism, that is, instruments for checks and balances in the criminal justice system, especially in the investigation stage, because it is very much likely to infringe on civil liberties and rights during the interrogations by police or by prosecutors. Thirdly, theories are not sufficient but necessary condition for the criminal procedure reform. For the completion of reform, the other conditions are also inevitable such as civil control over criminal justice system by way of participations, and the legislation of the Parliament, and so on.