견제와 분산을 위한 검찰개혁과제 재검토

Abstract

The first attempt for prosecutorial reform was in fact carried out by the ‘Participatory Government’. However, fundamental problems of the prosecution, such as centralization, abuse, political bias, have not been resolved. Therefore, demands for prosecutorial reform are continuously made. Yet, reformers’ recognition of the reform is not uniform, because the reform plan merely repeats the previous proposals, instead of a thorough and objective evaluation of the outcomes of the prosecutorial reform by the Participatory Government. This study has been prepared to critically review the currently proposed prosecutorial reform plans. To serve the objective of this study, first and foremost, I analyzed the outcomes of the prosecutorial reform by the Participatory Government. The Participatory Government had systemized almost all of the plans toward the political neutralization of the prosecution, and ensured substantial independence of the prosecutorial power through fair exercise of personnel administration. On the other hand, the Participatory government had put its best effort to establish the High Public Officials Corruption Investigation Office and make adjustments on criminal investigational power between the police and prosecutors. However, the above mentioned attempts have failed. As a result, although the political neutrality of the prosecutorial power has been strengthened, the affinity between the central government and prosecutors has also been strengthened paradoxically with the Lee Myung Bak Administration. This study has reviewed the present prosecutorial reform plans based on the outcomes of the evaluation of Participatory Government’s prosecutorial reform. The core of the present plan is not the self-control of prosecutors’ authorities based on quasi-judiciary theory of the prosecution. The reality of the Korean prosecution is that it is not public, objective or fair as a quasi-judiciary organization. Rather, the theory of a quasi-judiciary body works as a shield to protect the prosecutors from criticism, checks, decentralization with regard to unfairness and political-biases of the prosecutors’ office. In this aspect, this study points out that checks and decentralization of the authorities of an administrative body should be the focus of prosecutorial reform. Based on these theories, this paper proposes the following agendas for the present prosecutorial reform:First, to accomplish political neutrality, the Department of Central Investigation in Supreme Prosecutors’ Office and Public Security Department in District Prosecutors’ Office should be abolished. Second, to decentralize the authority of the prosecutors, the High Public Officials’ Corruption Investigation Office should be established. Third, the investigative authority and the prosecutorial authority should be divided systematically. Fourth, to check the abuse of power at the preliminary investigational stage, a public defender system should be established. Fifth, officers of the Ministry of Justice should be attorneys and law-specialists instead of the prosecutors to normalize the relationship between prosecutors and the Ministry of Justice. Sixth, the ombudsman and other civil participation systems should be adopted to ensure checks, but they must be conditioned on the decentralization of the prosecutors’ authorities. Lastly, since prosecutorial reform cannot be achieved with reform of the systems alone, it must be accompanied by the advancement of democracy.