유치장 감찰제도의 역사적 형성에 관한 연구 - 제도개선의 필요성을 중심으로 -

Abstract

In accordance with the Korea Criminal Procedure Law, public prosecutors supervise regularly, at least once a month, the arrest and detention facilities operated by the Korean National Police. Public prosecutors are required to inspect whether there has been any severe mistreatment such as torture as well as any illegal arrest and detention by police through examining the documents concerned and interviewing directly criminal suspects. If they uncover anything illegal, they are then obliged to redress them or a criminal case must be referred to the prosecutors’ office. This supervising system was introduced as Article 21, revision of Korea Criminal Procedure Law, laws and ordinances of South Chosun interim government no. 176 which was instituted by the U.S. Armed government in 1948. It aimed at removing the human rights-violating judicial process which had been implemented in Korea during the Japanese colonial period. And it was enacted as Article 198-2, Korea Criminal Procedure Law by paraconstitutional organization called the Supreme Council for National Reconstruction which was established by the military government after its coup in 1961. In terms of the legislative origin, this supervising system sets the goal of respecting and protecting the human rights of criminal suspects. However, this system is being operated anomalously by public prosecutors as a way to strengthen their rights to command criminal investigation over the police. In reality, the supervising prosecutors examine or demand police administrative documents which are irrelevant to any illegal arrest and detention. Even, prosecutors are known to not interview the criminal suspects. This can cause unnecessary conflict between the police and the public prosecutors. This study critically examines the historical formation and the actual operation of this supervising system. The research also argues that it is time to remove or reform this system. In addition, there is a need to detain and manage criminal suspects at a place run by the judicial organization not by the police.