경미사건 처리절차에 관한 비교법적 고찰

Abstract

Most advanced countries treat petty crimes and cases beyond controversy, which could occur in large numbers by setting up separate procedures or easing ordinary ones. To cope with petty crimes, Korea also has special procedures: informal proceedings by written reviews, summary conviction, and simplicity trial for cases without argument due to a confession at the court. However, these procedures have been criticized because of their respective problems. Even if the current procedures were improved, a congestion of criminal cases would not be effectively handled. The most fundamental way to expediting the processing of petty crimes would be to increase manpower for criminal judiciary and obtain enough physical resources. However, limited budget restricts possible options especially when jury trial, which has been practiced since January 2008, is supposed to go into full effect in 2013. Thus, the discussion about this issue focuses on controlling the total number of cases flowing into criminal procedures or on allocating limited judicial resources efficiently: to establish the principle of selection and concentration in criminal procedure, there are fundamental restrictions with the existing speedy procedure. Hence it is demanded a new speedy procedure functioning as a filter to cases should be put into trial proceedings. The purpose of this dissertation is to propose a model legislation to deal with petty crimes after examining legislative examples from other countries and examining which of them are relevant to Korea. This dissertation attempts to study the legislative examples abroad in order to seek for a new speedy procedure for Korea. To decide which system can be introduced or referred, we should deliberate on not only each specific system but also its judicial foundation on which it exists. As a result of substantial introduction of elements of the adversary system, basic structure of Korean criminal procedure appears to be a hybrid between the inquisitorial system and the adversary system. However, the basic structure of our criminal judicial system is closer to that of Germany or Japan than that of Britain or America, in that our system was heavily influenced by civil law countries in the process of modern legislation. Therefore, this dissertation first inquires into the system from countries with the Continental law heritage. In particular we could find many references from the Japanese system, so this study gives more concentration on the Japanese summary procedure. But in planning the speedy procedure, the Japanese system was modeled after the arraignment of the United States. In addition, the new German and French laws were also modeled after the American system with efficiency in mind. Therefore, this dissertation selects the arraignment as the fundamental structure while attempting to transform it for our present legal system. After all, when the arraignment is introduced for petty crimes and total plans managing a criminal case promptly is realized, the constitutional right to have speedy trial will be guaranteed effectively.