내사의 법적 근거와 입법론

Abstract

Internal investigation is “a secret investigative activity by investigative agency before exercising the investigation-start right, in order to find out whether the person under internal investigation can be charged a criminal offense or not”. Like the concepts on the internal investigation are various, various legal bases of internal investigation had been suggested. Regarding the legal basis of internal investigation, there is an opinion that the legal basis should be found in Article 199 of Criminal Procedure Code. However, it is contradictory to see this article as the legal basis of internal investigation; because this article is the legal basis of the fact inquiry as one of the arbitrary investigation methods, after the investigation-start right of the investigative agency had been exercised. It is also difficult to see the opinion, which suggests finding the legal basis in Article 195 and Article 222 of Criminal Procedure Code, as the legal basis of internal investigation; because Article 195 is the substantive enactment of the prosecutor’s position as the leader in investigation and the investigation-start right of the prosecutor. The existing Prosecution Case Administration Regulation, Judicial Police Officer Work Regulation and the Crime Investigation Regulation cannot be the general legal bases of internal investigation; because they are internal administrative regulations of investigative agencies rather than the laws legislated by the National Assembly. The present legislation suggestion on internal investigation is also contradictory; because it finds the legal basis of internal investigation in Article 199 and Article 195 of Criminal Procedure Code, which regulates the time frame when the investigation-start right of investigative agency had been already exercised. The argument to “limit the allowance scope of internal investigation to information collection and questioning toward related persons or investigation on the accuser” also causes irrational result of mass-producing unnecessary ex-convicts; because there would be unnecessary criminal charges when the investigation-start right would be exercised at the timing when only the investigation on accusers/complainants had been done. The argument that “any disposition by legal force to start the investigation should not be allowed” is not based on the understanding on actual practice; because a limited disposition by legal force as the last step of internal investigation to confirm the criminal charge of a specific person under internal investigation is required in internal investigation practice. Therefore, it is recommended to regulate the internal investigation by “Criminal Procedure Code Article 195-2【Internal investigation of prosecutor】A prosecutor can perform the internal investigation to find whether a criminal offense can be charged or not. However, disposition by legal force on person(s) should not be done; while disposition by legal force on asset(s) can be done at minimum requirement”.