검사직무대리제도의 현황과 문제점에 대한 검토

Abstract

The Supreme Public Prosecutor’s Office introduced probational prosecutor system at 2001, Sep. 1, and expanded this system all over the country at 2005, Feb. Probational prosecutor’s main duty is prosecution about minor criminal case. In spite of it's importance in the criminal justice system, there are very few studies about probational prosecutor system up the present. So, this study would focus on the whys of it’s introduction, legal basis, present state and problems. A law about probational prosecutor system has existed since the liberation of Korea, but had been a law that had become a dead letter until a recent date. However it was recently raised as a solution to the problem that the lack of prosecutors caused, namely excessive work. In the end it began at 2001, Sep. 1. Probational prosecutors has their own office room and they are aided by assigned detectives as prosecutors, but they can’t command a judical police officer to investigate a criminal case, also they can’t request warrant. Prosecution is essentially authority of prosecutor. Term 3, Clause 12 of the constitution regulate ‘only prosecutor can request warrant to the court’. If so, it correspond to the spirit of the constitution for only prosecutor, not probational prosecutor, having authority of prosecution, because authority of prosecution is more intrinsic prosecutor’s duty and authority than requesting warrant. Probational prosecutor system exists on the unreasonable premise that prosecutors have to conduct only major criminal case. Eventually, prosecutors in Korea have excessive influence beyond the law and system. Abolition of Probational prosecutor system is one method for reformation of the prosecution, because it would correct prosecutor’s excessive power and status.