수사기관 내사의 문제점과법적통제에 관한 연구

Abstract

Internal investigation refers to an investigative activity confidentially executed by investigative agency prior to the crime awareness (book) for checking investigatee’s criminal charges. Classification between internal investigation and investigation is divided into substance theory and legal form, but from the aspects of securing investigatee‘s human rights and justification of internal investigation, substance theory is more likely to be appropriate. Classification between internal investigation and investigation is essential for legal regulation of internal investigation, protection of investigatee‘s human rights and guarantee of defensive right, secure of legitimacy and justification of routine investigation as well as classification of investigative method. Problems of current internal investigation are that the legal basis for internal investigation in unclear, possibility of the infringement of investigatee‘s human rights is still in existence in the course of internal investigation process, internal investigation is lacking in legal regulation and investigative agency lacks a sense of internal investigation. Measures of legal regulation for internal investigation include change of investigative agency‘s perception toward internal investigation, exhaustive observation of objective obligation, fairness, reciprocality and proportionality and faithful realization of instructive philosophy of the Criminal Procedure Code in the course of internal investigation process. And legal basis for internal investigation must be clearly prepared as well. For legal regulation on the internal investigation by police, exercise of the prosecutors‘ right of command on the investigation must be possible in respect of substantive investigation which is possible to be decorated as an internal investigation ahead of the book and legal regulation on the internal investigation by policy must be substantially possible through supplementation of Article 18 of the enforcement ordinance and its rational operation. And the prosecution must strengthen the internal control on its own internal investigation by oneself and pay close attention to the internal administrative audit, inspect of the government offices and thorough implementation of post censorship by the power to investigate government administration. In addition, role of surveillant by indirect control by the media source, post censorship by the court as well as faithful role of legal regulation are also required. More than anything else, investigative agency must take efforts to change its perception to protect investigatee’s human rights and academic circles are also required to strengthen the theoretical basis with positive interest and active researches on internal investigation.