검찰과 경찰의 수사권 조정

Abstract

According to current criminal procedure code, the prosecutors are to preside the investigation. In fact, it is the police who investigates the vast majority of the criminal cases in our society. The cases where prosecutors preside accounts only for a small portion. In reality, the police does most of the investigation while the prosecutors decide only on the arraignment by examining the results of the completed investigations that come from the police. Having said this, it would be sensible if the police presides the investigationand prosecutors are just to decide on the arraignment. However, the prescriptions in the criminal procedure code is far from this. The presiding party of the investigation is the prosecutors and they are toguide and direct the judicial police on it. The reason why the police is not given the independent jurisdiction and kept under the prosecutor’s presidency is explained in two ways. First, there could be a danger of human rights infringement once independent jurisdiction is bestowed upon the police. Korean police is an organized group where over 150,000 armed personnel follow the commissioner’s commandconsistently. If this vast organization is not controlled by the external means, its huge power might be abused and infringe the rights of the citizens. Second, the efficiency of the investigation could be impeded. The purpose of the investigation is to confirm the criminal charges, prosecute, and give a conviction. This prosecution and the maintenance of the conviction require judgements from the prosecutors who are legal experts. If the police has finished the investigation and there is a lack of these requirements, inefficient results such as re-investigation might occur. This explanationassures the efficiency of the investigation that is presided by the prosecutors from the beginning. It is true that there were many violations of the human rights by the investigation agency in the past when the authoritarian government seized the power. However, the prosecutors still had a definite jurisdiction over investigation even during those times. It seems there is no definite link between the prosecutors’ presidency and the probability of the police infringing on human rights. Because the hierarchy system is very well established in the police, the custom of human rights violation lies at the hands of the head administration that is at the top of police authority but is not related to whether the prosecutors preside the investigation or not. Also, relating back to the efficiencyof the investigation, the prosecutors practically do not lead the most criminal cases except for a few very important cases. Therefore, it would be sufficient just to write out the guidelines which prescribe the requirements for the police investigation. There is no reason for not to legislate the standards for distinguishing the cases that require prosecutor’s direct guidance and those that do not. Thus, by categorizing the cases as those that need direct guidance of the prosecutors and those that can be abstractly regulated, the police can be bestowed a jurisdiction over the investigation to the latter cases and still be tolerable.