고위공직자범죄수사처법 제정과 운영에 관한 연구

Abstract

The “Act on the Criminal Investigation Body for High-ranking Officials(Act on the Senior Civil Servant Corruption Investigations Unit)” was passed by the National Assembly and will come into effect on July 15, 2020. The newly embodied unit is significantly meaningful in that the it checks the monopolistic power of the prosecution service. High-ranking government officials are subject to investigation by the Criminal Investigation Body for High-ranking Officials even after retirement if they commit crimes while in office. The problem is that there is no limit to the period. Crimes related to high-ranking officials’ crimes are also included as crimes subject to investigation in order to secure the effectiveness and continuation of the investigation, however it shall remain an issue as to how to define what crimes are related to high-ranking officials’ crimes. Accomplices, necessary accomplices, and those who commits destruction of evidence, perjury and false accusation in regard of Senior civil servants’ crimes will be subject to investigation. However, perjury and false accusation should be excluded from the investigation. If tInvestigation Body starts investigating and later finds out that the investigated senior servant’s crime is not subject to the new act, they can transfer this case to the police or the prosecution service, which will not hinder them from discovering the truth. Considering that the recent revision of the Criminal Procedure Law and the Public Prosecutors’ Office Law is aimed at reducing prosecutors’ direct investigations and strengthening their control over the police, the direct investigation rights of prosecutors (of the Criminal Investigation Body for High-ranking Officials) should not be expanded. The prosecutors (the Criminal Investigation Body for High-ranking Officials) will investigate crimes committed by high-ranking officials. They have the right to carry out compulsory investigations such as arrest, detention, seizure and search, as well as voluntary investigations according to Article 12 section 3 of the Constitution. Therefore the argument that it is unconstitutional for the prosecutor of the new unit to have the right for a compulsory investigation is not valid. Also The procedures for appointing a chief and a prosecutor of the unit are designed to ensure political neutrality. If the chief of the unit decides that it is appropriate for the new unit to investigate the criminal cases that overlaps with other governmental investigation body, considering the progress of the investigation and the controversy over fairness, the investigation body should apply to the request by the chief of the new unit. The new law is designed to prevent overlapping investigation for the human rights of suspects and for the efficiency of investigations. The investigation and management of the Criminal Investigation Body for High-ranking Officials are also subject to surveillance by the media and the National Assembly, which represents the people. However, excessive intervention by politicians and the media not only threatens the independence of the prosecution, but also threatens distrust of the public, so it is necessary to keep a close eye on the situation and criticize them with affection. In addition, follow-up research by academia and the working community on the law is needed to ensure that the Ministry of Public Safety and Security exercises its authority fairly based on the people’s trust.