수사권조정의 주요 쟁점

Abstract

The mediation of jurisdiction in the investigation between the public prosecutor and the police is under discussion as a method of reforming the public prosecutor, especially reforming political unfairness of the agency. If we have to reform political unfairness of the public prosecutor, in the same way we have to pay attention to reforming that of the police. While we discuss about the mediation of jurisdiction in the investigation, we have to consider not only political unfairness of the public prosecutor but also that of the police. Is the public prosecutor a quasi-judicial officer? Though there were some criminal cases that we were disappointed with the public prosecutor’s executions, the public prosecutors are quasi-judicial officers. An intrinsic attribute of law is what should be, not what it is. According to an extensive survey into all member nations of OECD, what is called the separation of investigation and prosecution is not global standard. The system of the instructional power of public prosecutor in criminal investigation process should be continued to exist to achieve constitutionalism in that process. If the police have the power to conclude investigation, according to a statistical data, about 4,000 crimes per year will be covered up, unless the wrong conclusions were corrected by other agency like public prosecutor. In addition, correcting wrong conclusions of the police requires a great deal of labor. According to current criminal procedure code, in case a decision of the police were wrong, public prosecutor, who has the authority, corrects the wrong decision directly and prosecutes the criminal. It is thought that this is reasonable, lawful and constitutional system.