중국 형사절차상 구속 피의자의 권리

Abstract

Due to growth in personal exchanges between South Korea and China following the establishment of diplomatic relations between two countries in 1992, the human right of Koreans who have been in custody and punished by Chinese authority has been more important issues. In order to solve these issues, both countries entered into Treaty between the Republic of Korea and the Republic of China on Mutual Legal Assistance in Criminal Matters. However, due to lack of understanding in criminal procedure in a Communist country, there are still difficulties in securing the human right of the Korean accused in China. Therefore, in this paper, I’d like to contribute to protection of the human rights of Koreans staying in China through a study on the arrest system in China, especially with regard to the right to counsel of the accused. It has been interpreted that during the investigation procedure, the accused has status of a party of legal proceeding with a variety of rights guaranteed by the written provisions in criminal procedural law. However, a criticism may arise that the status of a party is just a matter of formality since the accused are able to under custody for a long time and their right of counsel have been restricted because the scope of requirements of arrest is broad and the term of arrest is excessively long. According to the progress of investigation procedure, the rights of counsel are only recognized as following three rights in China: (1) right to self-representation (2) right to the assistance of the counsel (3) right of being represented by counsel. Though various rights of the accused are recognized such as right to know his own case, right to change of judge, right to use his own mother tongue and characters during investigation, however, the most important right, the Miranda right, is rather denied. Lastly, in this paper, the right of the accused in the light of the criminal procedure in China has been analyzed and studied in depth, together with comparison study with S. Korea. Furthermore, this paper has pointed out that the Chinese criminal procedures have been developed as a systematic fruit in accordance with historical, societal, and cultural circumstances and also indicated that continuous study will be needed on this subject.