민사사건에 대한 고소의 원인과 대책

Abstract

Since the function of accusation system is to protect people from receiving damages as a result of crime and ensure appropriate implementation of the judicial system, the accusation right of people should be recognized as a right. The criminal procedure law defines it as a right by specifying the right of appeal and arbitration to accuser and the right to receive notification from prosecutor. However, the practice of turning a case to be handled as civil case into criminal case through accusation, thereby causing emotional and material damages to the accused, and receiving exemption of indictment such as being cleared from suspicion after having wasted considerable investigative manpower and budget needs to be eradicated. The cause of such overuse of accusation can be found in the way of thinking of people that have become accustomed to the existing system that has not clearly distinguished civil case from criminal case. However, the bigger cause is the difficulty in collecting evidence through civil case, the difficulty of civil execution and the prosecution voluntarily taking on the role of arbitrator. In terms of the solutions to the overuse of accusation that have been proposed in legal and academic circles, the majority of them put the emphasis on restraining accusation through criminal law. However, in the sense that accusations will not decrease if solution through accusation is easier and more economical than solution through other systems, it is difficult to consider such proposed solutions as fundamental solutions. Contrary to existing discussion, the author has accordingly presented a discussion based on the notion that the increased efficiency of civil case and the restoration of trust of civil trial by people is the fundamental countermeasure to prevent overuse of accusation. To briefly summarize existing discussions, it has been proposed to expand the discovery system during civil suit procedure, and apply the hearsay rule for the written statement collected by investigative agency from accusation even for civil suit procedure to not recognize its admissibility to eliminate the motive of overuse of accusation for evidence collection in civil case, and drastically reduce judge's discretion in civil suit procedure to restore people's trust in civil trial, and supplement civil execution act to allow creditor that received irrevocable judgment to easily obtain satisfaction. In addition, contents that have not been mentioned in details in existing discussions by scholars were also discussed as countermeasures against the overuse of accusation. They are assertions on imposing cost to accuser in the case of exemption from indictment as a result of investigation from accusation, and abolishing the Personlichkeitsverletzngen implemented by the prosecution according to crime victim protection act to exclude the prosecution's arbitrator role in civil case.