위험사회에서의 형사소송법의 변화에 대한 검토

Abstract

In risk society, risk sources that threaten the live and property of people continuously appear. The role and scope of risk criminal law is continuously expanding; however, it also results in the situation, in which the human right of good people is restricted and the frame of traditional law-governed state is being threatened. In risk society, it is important to actively prevent risk sources that threaten people and secure the safety of society by expanding the state punishment right and strictly enforcing law; however, it is more important to prevent unfair infringement of human right by excessive exercise of state punishment right. In the situation, in which such problematic issues of risk criminal law continuously appear in risk society, the active function expansion of criminal procedure law under the guise of realizing safe society will result in the increase of adverse function in criminal procedure law instead of increase of positive function. There are opinions suggesting to introduce active police questioning, expansion of scientific investigative techniques, expansion of electronic watch system, statute of limitations exclusion/extension, expansion of internal investigation, active seizure and search of digital evidence, plea bargaining system, obstruction of justice offense system, key testifier attendance system and witness immunity from prosecution system; however, these systems all reinforce the authority of criminal justice agencies including investigation agencies. These systems emphasize the authority of investigative agencies, promote the finding of substantive truth and enhance the efficiency of criminal case procedure; however, they also cause many problems by departing from the standards in existing criminal procedure system. On the contrary, the expansion of criminal procedure law function and role in risk society has the infringement risk of suspect human right, damages the principle of substantive truth and the due process idea and causes the adverse effect of increasing the risk of making a civil case into a criminal case. Therefore, the application of criminal procedure law in risk society should not expand and emphasize the function of it. Instead, establishing and realizing criminal procedure law policies, which would enable the exercise of state punishment right in human right state and integrate society, is required. The risk sources occurring in risk society should be dealt by application of law faithful to the basic principle of law-governed state; instead of anticipative application of criminal procedure law. This is the right application of criminal procedure law in a human right state and this is the way to fulfill the duty of state, which is protecting the human right and basic right of good people.