한국과 프랑스의 의원의 불체포특권에 관한 연구

Abstract

It was by the Privilege of parliament Act in 1603 that immunity from arrest was given to English Membersof Parliament against the King who used abusively arrest them. In France, It has been admitted to legislatorssince the Constitution of 1791 after French Revolution. Being not criminally responsible for their speeches, votes and other actions as Members of Parliament,legislators are, however, responsible for their actions as normal citizens. There are, however, strong limitationsas to their prosecution. Before the French Constitutional revision in 1995, the arrest immunity was not onlyapplied to the arrest, but also to the prosecution. This immunity raised many questions. French people wantedto reduce the parliamentarian privilege concerned by amending their Constitution. Actually, according to thearticle 26 paragraph 2 of the French Constitution of 1958, no Member of Parliament shall be arrested for aserious crime or other major offence, nor shall he be subjected to any other custodial or semi-custodialmeasure, without the authorization of the Bureau of the House of which he is a member. Such authorizationshall not be required in the case of a serious crime or other major offence committed flagrante delicto or whena conviction has become final. The parliamentarian privilege being admitted only as immunity from arrest, it was considered to be inpractice enlarged. At first, permission of the Bureau of the House for removing the privilege is not onlyneeded for arrest but also for any other custodial or semi-custodial measure. Secondly, the ordinary session isextended from 6 months to 9 by constitutional amendment. (Article 28 paragraph 1)Sometimes, to be a member of Parliament, especially Senator who is elected by an electoral college inFrance, it could be considered as a way to prevent a politician from being prosecuted for various allegedcrimes of corruption and misuse of public funds. That’s why immunity from arrest is still at issue.