형사법 규정에 관한 헌법개정 방향: 세계 주요국 헌법의 실증적 비교를 중심으로

Abstract

Constitution is the basic law and ultimate norm governing the national community. The constitution which is the highest standard is the basis and operating principle of criminal justice system and suggests the limit in exercising the authority. Under this premise, this study extracted, compared, and analyzed the criminal justice codes from the constitutions of 34 major countries around the world and examined the similarities and differences between constitutions of the world and the characteristics and trends of each constitution based on Anglo-American Laws and the form of the nation. Based on the analysis and examination, this study examined the direction in which the criminal justice codes shall be revised when the constitution will be revised in the future. First, the nation’s basic rights and human rights related with criminal justice, principle and system of criminal justice, principle of legality have been established as the universal and appropriate basic ideology and principle in each constitution both in Anglo-American Law and Continental Law systems. Second, there was no significant difference between the arithmetic number of provisions relating to the police, prosecution, and court in the constitution. Third, in relation to judicial power, which is one of three separated powers, a majority of countries constitutionally stipulated a general committee for justice related state organizations in order to ensure communication and resolve dispute and conflict between justice related organizations. Fourth, a number of countries are specifying jury system and layman judge system in the constitution for the democratization of jurisdiction. Fifth, the state duty to rescue relating to crime and state duty to compensate the innocent for detention in South Korean constitution are quite distinguished provisions and are wholesome in the aspect of the role and obligation of modern state. On the contrary, the contents represented by ‘application by prosecution’ in the rule of warrant in the constitution shall be deleted as it is not appropriate for the nature of the rule of warrant. The following directions for constitutional revision were derived; First, considering that the role and obligation of the police are the fundamental means for the key liberal democratic basic order in the constitution, it is necessary to specify the duty and mission of the police and the political neutrality in the constitution. Second, the nature of the rule of warrant lies in the ‘warrant issued by judge.’ Retaining the ‘application by prosecution’ is inappropriate and shall be deleted. Third, it is necessary to prepare the constitutional basis for the organization of a committee capable of giving advice, making adjustment, and reaching settlement regarding mutual conflict and communication between the state’s justice related organizations. Fourth, the democratization of jurisdiction requires jury system, layman judge system, and so forth and the constitution shall include provisions related with citizen participation in criminal trials which are exercised without constitutional basis in order to controversy over its violation of the constitution.