수사기관에서 직무대리의 권한 - 검찰청법 제32조의 검사직무대리를 중심으로 -

Abstract

According to the current act, there are two ways to qualify as a lawyer. One way is to pass the bar exam and then complete the process of judicial training. The other is to pass the National Bar Examination after earning a juris doctorate degree from a professional law school. In Prosecutors' Office Act, there are two kinds of “acting on behalf of prosecutor". One thing is as provided in article 13(2), 18(2) and 23(2). If the Prosecutor General or chief prosecutor is unable to perform his/her duties due to any extenuating circumstance, the Deputy Prosecutor General, the deputy chief prosecutor(high prosecutors' office) shall assist each other. This is the original meaning of 'acting on behalf of prosecutor'. The other is as provided in article 32. This can be classified into two categories. First, The Prosecutor General may, where the dean of the Judicial Research and Training Institute requests, order a judicial trainee of the Judicial Research and Training Institute to act on behalf of a prosecutor of a district prosecutors' office or branch office for a fixed period. Second, where the Prosecutor General deems necessary, he/she may have a Grade IV prosecution investigation official, Grade V prosecution official, Grade V investigation official or Grade V narcotics investigation official act on behalf of a prosecutor of a district prosecutors' office or branch office. Definitely, there are limited. No person who acts on behalf of a prosecutor shall handle any case brought to a collegial court under the Court Organization. The scope of prosecutors' duties to be exercised vicariously under 32(2) and other matters necessary for operation of vicarious excercise of prosecutor's duties, etc. shall be prescribed by Presidential Decree. There are two things I would like to discuss in this article. First although have a status of public officials in extraordinary civil service, judicial trainees who passed the bar exam but not completed practice wouldn't qualify as lawyers. So some documents which have been made by judicial trainees should not be adopted in the court the same thing as by the prosecutors. Second, a type of occupation of prosecution investigation official is essentially different from prosecutor's. In Prosecutors' Office Act, article 32(2), it is permissible that some kind of prosecution investigation officials shall be acting on behalf of a prosecutor. However, I think this article should be abolished because people of various occupations should not perform other's function and a prosecutor could essentially delegate authority to someone on the same area of work.