형사절차의 이념 - 실체진실주의의 허구성을 중심으로 -

Abstract

They assert that both of material truth finding and due process is all ideas of criminal procedures. The material truth finding means that the prosecutor and judge have to find the contents of crime which occurred in the past. Due process means that rights of the suspected and the accused have to be protected and criminal procedure has to be rational and democratic. I think material truth finding can not be idea of criminal procedure. Because human beings ruled by time can not make the contents of past accidents clear. We can not return to past so long as we are not god. The material truth finding match not to human beings but to god. And if we emphasize the material truth finding too much, rights of the suspected and the accused can be violated easily and in not small way. If judges effort to search the truth of fast event, he might impose criminal sanctions to innocent person. Because he has to make somebody criminals as doer of fast crimes. The opinion that the object of adjudication in trial of criminal procedure is historical facts has these dangers to impose obligation finding historical truth to judges. But the opinion that the object of adjudication in trial of criminal procedure is written arraignment itself does not impose the obligation to find historical fact to judges of criminal court. The material object in criminal procedure can be identified only the result -guilty or innocent-. This object is only the result of due process of investigation and jury. The object of truth finding has not to rule due process of investigation and jury. In the criminal procedure only the due procedure can be idea and goal. The due process of investigation and jury can be extracted from contents and will of the Constitutional law. The Korean Constitutional law present the highest value of the nation is the rights of people. So not material truth-finding but due process has to be presented the idea of criminal procedure. The concrete contents of due process are as below. First human beings have to be treated not means of finding criminals but goals of valuable existences. Second he suspected and the accused have to receive assistances of the lawyer. The assistances of the lawyer crucial human rights to he suspected and the accused in criminal procedure. Third putting national power in action has to be restricted at its maximum. Any threats and liable conciliations of national power can not be recognized as evidences of criminal guilty.