공소권남용의 판단기준과 허용범위

Abstract

The purpose of criminal suits is to realize fair trial. In criminal suits, prosecutors must exercise the right to prosecute as a directly involved party. The right of indictment is a duty given to the prosecutor and a proper right. However, the prosecutor’s right of indictment is based on objective obligations granted by the people for the realization of public interest. From this regard, prosecutors must exercise caution as representatives of public interest when exercising their rights of indictment and they must exercise these rights following thorough standards so that the abuse of prosecutorial power does not occur. Of course, while the principle of discretionary prosecution is recognized for prosecutors according to existing criminal procedure acts, it is reasonable for prosecutors to exercise their rights of indictment based on their objective obligations. Therefore, while a cultivation of empowerment and a sense of duty are needed to suppress prosecutors from abusing prosecutorial power, it is reasonable to consider legislative theories that define the legal effects of litigation and reasons for any abuse of prosecutorial power to prevent retaliatory indictment based on the political judgment and intervention of the prosecutor and to prevent the prosecution from significantly deviating from the right of discretionary indictment. At this, this study examined the types and judgment standards of prosecutorial power abuse in detail, beginning with the essence of the right of indictment and theories regarding the abuse of prosecutorial power to establish judgment standards and tolerance ranges of prosecutorial power abuse and as a result, concluded that it is realistically appropriate to consider legislative theories based on theories of interpretation that fully reflect the position of the court as a method to suppress the prosecutorial power abuse of prosecutors in criminal practice. Therefore, it is useful to legislate article 327-2 of criminal procedure law (abuse of prosecutorial power and judgements of public prosecution dismissal), which states that “in the event that any actual disadvantages occur to the defendant due to a significant deviation from the right of discretionary indictment due to an arbitrary exercise of the right of indictment, the prosecutor must declare a dismissal of prosecution as a judgment”, for the purpose of criminal procedures to be achieved along with direction for prosecutorial reform.