검·경 수사권 조정에 대한 소고

Abstract

The amendments to the Criminal Procedure Act in 2020 and the Public Prosecutor's Office Act in 2022 reduced the scope of investigations directly conducted by prosecutors to major crimes as defined by presidential decree, including corruption and financial crimes, and stripped prosecutors of their authority to direct investigations. The amendments allow the police to investigate criminal cases independently, without prosecutors’ authority to lead investigations. Currently, people in Korea are experiencing the bad consequences of these amendments. Here is how prosecutors’ authority to direct investigations was created over the course of the country’s history: The period of Japanese colonial rule will not be discussed here, since both the police and prosecutors were used as tools to exploit Korea. Prosecutors’ authority to lead investigations was abolished under the influence of the British and American legal system in the early days of the United States Army Military Government in Korea. To prevent human rights abuses and ensure investigative efficiency, however, prosecutors continued to make efforts to restore their authority to direct investigations. Giving credit for their role in cracking down on the left wing, the United States Army Military Government recognized prosecutors as the presiding officers of investigations and gave them the authority to lead investigations. However, prosecutors' investigative authority was drastically reduced by the adjustment of investigative jurisdiction under the Moon Jae-in administration, and even prosecutors’ authority to lead investigations was taken away. This study suggests the following psychological mechanism behind the conflict over investigative jurisdiction between prosecutors and the police: During the United States Army Military Government in Korea, prosecutors were able to revive and retain the authority to lead investigations as they were recognized for their role in cracking down on left-wing activists. Since then, they kept the authority as they had the ability and motivation to have the upper hand in the competition for the authority to lead investigations. In other words, according to the social dominance orientation theory, prosecutors retained the authority to lead investigations due to their sufficient ability and motivation. At a time when they were stripped of the authority to lead investigations, prosecutors vehemently refused, which is considered to come from a mechanism in the human brain that triggers aversion to loss, known as loss aversion. On the other hand, the police developed psychological reactance to prosecutors as they were led by prosecutors in investigations for a long time. Based on cognitive and emotional responses in the psychological backlash theory, prosecutors’ message was cognitively perceived by the police as a threat to their freedom, which led to the emotion of anger. As this cognitive and emotional situation persisted for a long time, the police’s hostility towards prosecutors grew more and more. The Moon Jae-in administration’s intervention and adjustment of investigative jurisdiction, however, gave the police more investigative jurisdiction, resulting in a situation where prosecutors were stripped of their authority to lead investigations and the scope of their investigative jurisdiction also was reduced. This study investigates how investigative jurisdiction and the authority to lead investigations have evolved in history by shedding light on the history of conflicts between the police and prosecutors, examines the psychology of prosecutors and the police during the process, and thereby, contributes to a comprehensive understanding of investigative jurisdiction and the authority to lead investigations.