검사의 수사지휘권에 대한 검토

Abstract

Investigation should pursue not only a optimal functionality, but contribute to realize a principle of constitutional state through adhering to rule of due process of law. It is a historical moral, that the aim can be achieved only by a optimal control of investigational power. According to the applicable law the public prosecutor holds vast and inclusive power over criminal investigation, but he can’t actually exercise his instructional power properly because of broad, flexible and mobile character of criminal investigation. On that account it comes occasionally to violate investigational propriety and becomes often a primary factor of organic conflicts between police and public prosecutor. To demonstrate these problems theoretically, I ascertained how far instructional powers of public prosecutor reach normally and factually, and looked into the points at issues of broad instructional power in view of a factual case. Investigational instruction(command) is originally based on organizational homogeneousness, while public prosecutor play a important role as a legal controller against investigational police activity, in spite of heterogeneous character from police organization. Therefore, it is desirable to stand side-by-side in a cooperative relationship between police and public prosecution in a substantial sense, maintaining a legal control power of prosecutor against police investigation. However we should not forget, that people is interested not in innovating investigational organization, but in thinking out and developing a investigation model contributing to improvement of human rights.