군사독재를 경험한 국가들의 민주화 이후 검찰개혁 - 한국, 아르헨티나, 브라질, 칠레의 경험 비교

Abstract

The study examines the institutional aspects of how Korea and South American countries such as Argentina, Brazil and Chile, which had experienced commonly military government in the past, reformed the public ministry after the recovery of democracy. The experiences of military dictatorship in four countries are as follows: Korea experienced the longest period of military dictatorship (27 years) (1961~1987), Brazil (1964~1984), Chile (1973~1989) and Argentina (1976~1983). There is a common experience that the public ministry was abused by the military dictatorship government as tools to oppress the opponents of the regime rather than for the public interests. Three South American countries have promoted public ministry reform in the framework of the constitution after democratization. However, even the prosecution reform has been pursued with the great goal of independence from political powers, but the way and the result are different. According to Professor Heon Hwan Lee's models of institutionalization of the Public Prosecutors Office, the three South American countries have fully reformed the public ministry as a constitutional independent agency, namely, the ‘independence model’, while Korea maintained the public ministry as an agency under the Ministry of Justice, namely, ‘vertical model under the Ministry of Justice’ taking minor reform measures. The question of where to place the public ministry under the Constitution has a great deal to do with the political will to separate the public ministry from the political powers. The constitutionalization of public prosecutors is common phenomenon in countries where public prosecutors have been abused as governmental means to oppress human rights and political opponents during dictatorship. Korea has once again chance to put the reform issue of public ministry under national debate. The experience of the ‘independence model’ through the constitutionalization of public ministry in three South American countries can be a highly useful precedents to consult.