사인소추주의의 제도적 현상과 수용가능성

Abstract

This paper offers an overview of the legal status quo of private prosecutions in some countries and assesses its usefulness and availability. A system of private prosecution, which is a prosecution started by a private individual who is not acting on behalf of the police or any other prosecuting authority or body which conducts prosecutions, is necessary in that it enables the citizen to bring offenders before the criminal courts, where the public prosecutor is unwilling to make the first move. It can be therefore justified in terms of the individual interests of the victim in vindication of personal grievances and public concerns about the improper action and inaction of the public prosecution service as well. In many legal systems, prosecution by an agent of the state has gradually superseded private prosecution. Yet the victim's or any citizen's right to bring criminal charges can serve as a check on the public prosecutor's inaction, and many legal systems provide for this possibility. In England, private prosecution still forms the theoretical basis of the prosecution system. But in practice only a minuscule portion of prosecutions is actually brought by private citizens. This is not surprising because private citizens typically lack the financial means and legal expertise necessary to launch successful prosecutions. Private prosecutions are further discouraged by the fact that the Crown Prosecution Service can at any time take the prosecution away from the private citizen and terminate it. In Germany, some criminal offenses are labeled private prosecution offenses and can be brought to trial by the victim without any involvement of the public prosecutor. French law goes one step further by permitting any victim personally harmed by the offense to declare himself or herself a civil party and to s-et in motion a public prosecution. However, the right to bring private prosecutions is not preserved by the Korean Code of Criminal Procedure: Korean criminal procedure relies heavily on a system of public prosecution. The crucial function of the prosecutor in any legal system is to determine which cases should be brought before the court for adjudication and which should be disposed of in other ways. In all legal systems, the prosecutor has some leeway in making this decision, yet the amount of freedom the prosecutor enjoys differs. Korean law grants the prosecutor almost unlimited discretion, whereas some legal systems are somewhat less liberal. The Korean system of prosecution relies almost exclusively on the political responsibility of prosecutors and provides few other checks on their discretionary powers. A private prosecution could be a mean of confining and controlling prosecutorial discretion; it is of interest especially insofar as it limits the prosecutor's inconspicuous power not to prosecute.