개정 형사소송법상 경찰의 불송치결정의 법적 성격, 통제방법 및 통제방법의 문제점과 개선방안에 대한 고찰

Abstract

The Criminal Procedure Law and the Public Prosecutors' Office Act was revised regards the legislation of the adjustment of investigative powers and the prosecutor's reform which we've been discussingon on February 4, 2020, including the abolition of prosecutor's command to judicial policeman and cooperative relationship regulations between prosecutor and judicial policeman, recognition of police's non transfer decision right, reduction of the prosecution's authority to beginning a direct investigation, equalization of the requirements for the recognition of evidence capabilities of the suspect's interrogation report written by prosecutor and judicial policeman. Among them, the establishment of police's non transfer decision right which the judicial policeman shall determine whether the suspect is suspected based on related documents and evidence after completing the investigation and decide non transfer decision to prosecutor is an important change in investigation closing system. In this paper, author studied about police's non transfer decision right which may be much controversial regarding its legal nature, effectiveness of control methods, etc.. Concretely, author studied the meaning of the right to terminate an investigation, the meaning and legal nature of non transfer decision, prosecutor's right to review the records of investigation and re-investigation request, the accuser's right of appeal and sending a case to prosecutor which is control methods about police's non transfer decision, problems and improvement plan of the control methods about police's non transfer decision. In particular, the existing general view on the legal nature of non transfer decision is not an ultimately disposition but rather a primary and a provisional disposition. But unlike the previous general view, author suggested the private opinion that the non transfer decision is ultimately disposition in terms of the subject of the right to terminate an investigation and the relationship between investigation subject under the revised Criminal Procedure Law and the Public Prosecutors' Office Act, contents of the revised Criminal Procedure Law and the Public Prosecutors' Office Act, problems of existing views which confuse the non transfer decision itself with the control method, contents of Regulations on the General Rules of Investigation and Mutual Cooperation between Prosecutor and Judicial Policeman, internal and external disobedience procedures, quasi-judicial dispositional nature of investigation termination. And concerning the problems and improvement plan of the control methods for police's non transfer decision, author presented the following private views. ① If a judicial policeman fails to comply with a request for re-investigation, it is necessary to establish a new regulation for exclusion of duties or disciplinary action. ② If the prosecutor disagrees with the judicial policeman's opinion and asks for the transfer of the case which the judicial policeman maintained the previous non transfer decision and informed the conclusion of re-investigation, it is necessary to establish an objection system for the judicial policeman. Furthermore, author presented personal opinion on the method of the organization which is in charge of objection. ③ In order to prevent abuse of the objection by the accuser, it is necessary to impose him to write 'reason for objection, such as criminal facts and evidence of the case subject to the objection in a written objection. ④ In the case of an objection from the accuser, a procedure is required to determine the legality and validity of non transfer decision within the police. Furthermore, author presented personal opinion on the organization and operation method, authority of the agency which is in charge of this matter.