검사의 불기소 결정의 법적 정비를 위한 제언

Abstract

The prosecutor decides whether to prosecute the criminal cases which he or she directly investigated or were investigated by the police. Usually, over half of these cases are filtered out during the decision to prosecute and are not referred to court judgement. We generally call it “the prosecutor’s judgement whether to prosecute criminal case”. The prosecutor is a sole national authority and the decision of whether or not to prosecute is a very important judgement carried out by the prosecutor in the name of the state. Nevertheless, the requirements, procedures, and contents of the judgement not to prosecute have been regulated by not Criminal Procedure Law but the enforcement regulations of the Ministry of Justice(Prosecutor’s Case Regulation) since the state established criminal procedure system. This is due to the fact that lawyers do not understand the real meaning and the importance of the non-prosecution judgement. There are many legal problems that should be solved in this system. In addition, there are a lot of lack of rationality about the content, form, and procedure of the decision, and even the adequacy of the term. Furthermore, while these practices has been enforced almost 60 years, the indication or improvement of the problems were neglected compared to the prosecution and the subsequent court’s proceedings. In this article, I point out some problems about the present legal system and the procedure of the prosecutor’s non-prosecution judgement and suggest some measures to improve the system.