한국형 미란다 원칙의 재정립과 수사 실무와의 관계에 관한 고찰

Abstract

The conflict between the police which is reborn to establish independence of investigation and the prosecution which had all the established authority to investigate, is continuing because of the ongoing investigation adjustment issue. Before that, it is necessary to look again at whether the investigative institution is properly performing the Korean Miranda Principles based on Miranda Verdict of United States of America, which affected the criminal procedure of other countries. As the Criminal Procedure Act was revised on June 1, 2007, the Article 200 by 5, the principle of the Miranda principle notice, was established newly named as "Notice of Arrest and a Suspected Matter". But, in practice, the customary practice of noticing the Miranda principle has already been established in the early 1990s. In the background of this notion of Miranda principle, it is connected with the case (the Supreme Court of June 23, 1992, 682 ruling), stated excluding the evidence capacity of the evidence collected without notice of the right to remain silent is also closely related to the birth of the Korean Miranda Principle. The decision of the Supreme Court and the Constitutional Court, which recognized the right to participate in the defense, can be seen as the completion of the Korean Miranda Principle.   However, it is doubtful whether the meaning and influence of the Korean Miranda principle is comparable to Miranda Verdict, which is considered to be the most surprising and novel judicial decision in U.S. legal history. Of course, as attached ourselves Korean type to Miranda Principle, it is a Miranda principle that has been established in accordance with our investigative circumstances, but, in Korea, there is no way to check whether to notice well the fact that Miranda Principle and a Suspected matter with Arrest. There is criticism whether Miranda Principle has changed the reality of the investigation. Also, the attorney's role is perceived as a vulnerable right that is restricted by investigative institution. In order to resolve this gap, academics and lawyers are making efforts to strengthen their right to participate in the defense by attorney, but recent discussions on attorneys' right to participate in the defense have seemed to focus too much on rights itself. The extension of the right to participate in the defense to all stages of investigation is not meaningless, but the problem is that there is a lack of discussion centered on the Suspect who are directly affected by the right to participate in the counsel.   Therefore, it is necessary to newly establish currently Korean Miranda principle by understanding the before and after process of Miranda Verdict. And it is necessary to converse the paradigm as carefully considering the Suspect instead of the exhaustive debate on the right to participate in the defense by attorney. It should be considered prudently from a method of warning the Miranda Principle to the stage of interrogation of the Suspect for using the right to remain silent guaranteed by the Constitution. In particular, if the participation in investigation of the Suspect’s attorney is limited, it is necessary to re-notify the Suspect about their right to remain silent. The rights guaranteed by the Constitution have been relatively neglected in the past, compared to other states(Article 200 by 5 of the Criminal Procedure Act) of Miranda principles, it is quite possible to change to the direction to guarantee again. This will also have a positive effect in reducing the burden of investigation work done by future investigators.   In the end, if the investigative Police that take exclusive responsibility of investigation and the Prosecution that take complete charge of indictment are settled, and if the value chain in which the human rights and the public power are harmonized, at the same time, as establishing the warning obligation to consistently Miranda Principle and the right to participate in the defense by attorney for convincing the nation from the moment of arrest to the end of the investigation and then the prosecution by redefining Korean Miranda Principle at the time of entering the investigation, can be realized, this will be a great basis for building up the advanced judicial system of the Republic of Korea.