「고위공직자범죄수사처 설치 및 운영에 관한 법률」의 해석상 문제점에 대한 비판적 검토

Abstract

「Corruption Investigation Office For High-ranking Officials Act」 was enacted and recently came into force. The purpose of this act is to eliminate corruption of high-ranking officials and to reform and check the excessively concentrated power of the prosecution service. However, when looked closely, this act has some defects and even might pose serious risks to the rule of law in the criminal procedure. Firstly, Corruption Investigation Office(CIO) is structurally fragile in that it could be subject to political intentions of the political majority at the time of its composition. Not only does its job itself which is to investigate high-ranking officials have a political character, but also the wide range of discretion is granted to CIO in the selection of targets and of investigative means. This factors allow CIO to be influenced by political intentions outside as well as its own political motivation inside. This risk can be amplified, coupled with the prevailing influence of party negotiation groups of National Assembly in the process of appointing and reappointing members of CIO. Ironically, guaranteeing the organizational independence of CIO for its neutrality may mean just giving up the check against the danger of abusive power of CIO in this legal setting. Secondly, this act might bring about contradictions and confusions in terms of its interpretation. Although dichotomizing prosecution mechanism unprecedentedly and giving organizational independence to CIO, this act simply used the way of mutatis mutandis of criminal procedure and prosecution service law, and not defined the CIO prosecutor. This raises fundamental questions of what is the concept of the prosecutor by the constitution and criminal procedure law. Considering its dual positions of criminal police on the one hand and prosecutor on the other, the same authority as the prosecutor can not be given to the CIO prosecutor. Lastly, this act failed in harmonizing the criminal legal policy because it does not provide effective mechanism enough to resolve the contradictions between dichotomized prosecution agencies. This could produce the distrust of the public to the judicial field in the long-term. This act appears to fail in achieving the balance of thin line between the prosecutors’ accountability and their independence.