합리적인 수사권 조성에 관한 연구

Abstract

Although the current code of legal criminal procedure has mostly adopted the Anglo-American system of criminal suit structure, the structure of criminal investigation, which is under the influence of the continental legal system, adhere to under the supervision of prosecution. Therefore the judicial police officers are controlled and directed under the prosecution of justice department for criminal investigation. Due to the subordinating function of the police investigation to the prosecution, it has had a negative impact not only on the investigator's activeness and efficiency but also on reasonable police developments and morale of the whole police. In this behalf, the prosecutions wield absolute power that no similar cases can be found elsewhere; such as the authority of investigation that enables the decision of the direction of the investment, the target and the range, the right of claim of warrants – such as arrest warrants, rights of prosecution that decides whether to subject the suspect to the trial, the right of indictment that permits whether to prosecute or not to prosecute a suspect, and the right of rescission of indictment that enables to recess the criminal trial that is already in process. In the worst case, if the prosecution decides to abuse the omnipotent power, the victims would only be the citizens. Minimal separation of powers and a brake system of balances is the way to acknowledge the independent investigation authority and institutionalize the mutual checks and balancing. Due to high economic growth and social changes, aspects of today's crime are increasing in quality and diversifying day by day. Moreover, expectations for the people's human rights awareness level have risen significantly over the past years. At such times, the criminal justice system that deals with various crimes is urgently requiring close mutual cooperation between the police and the prosecution and there ought to be a problem with the existing law of unification with the prosecution to protect people from crimes and governmental power. Reviewing the results till today, the structure of Korean's current investigation system mimics Japan's old code of criminal procedure, but Japan, who was the mother of the system, has already changed from such an investigation system while we are still clinging to it.

To solve this problem, despite a number of congressional disputes, the national assembly passed through the criminal procedure amendment about the mediation of investigation authority between the police and the prosecution in last June 6. 2011. It has brought increasing the accountability of law enforcement agencies, minimizing the suspects' and defendants' violations of human rights and modifying the current laws in order for the reality of investigation and legal provisions coincide into effect. By amending article 196 of the criminal procedure, the police were given their position as the principal of investigation to start and progress independently about investigating criminal charges. But since it also states that a judicial police officer is to take orders at 'all investigations' from a public prosecutor, the law itself is not agreeable. This is just recognizing the subjectivity of the investigation but the authority of conducting an investigation still remains with the prosecutor. Therefore it has faded the meaning of the mediation of investigation authority. In the following thesis, I proposed how to regulate the investigation authority to achieve the goal of protecting people from crimes and government power through future legislation progress and by mutual checks and balances of power. Firstly, the police shall exercise primary investigation authority. But the prosecutors should exercise the secondary and supplemental investigation authority only on the following cases, such as if the judgment of prosecutors is needed, or if the prosecutors were appealed against the results of the investigation or if there is a dispute that accuses human rights abuses by police officers. Secondly, according to the current constitution the prosecutors have the investigation authority and the police are being subjugated to prosecutors. But this should clarify the obligations of cooperation between the two organizations and prescribe the mutual relationship as equal and collaboration. Thirdly, by eliminating the involvement of prosecutors before forwarding the case to the prosecutor's office and permitting the police to investigate with their own authority, unreasonable investigation interferences should be removed and the police's system of responsible investigation should be established. Fourthly, the right of prosecutors to claim warrant in the constitution of Korea, article 12 paragraphs 3 and article 16 should be eliminated. And the right of claim of warrant of polices should be added along with the prosecutor's right of claim of warrant in the law of criminal procedure. In the case of a criminal investigation where the characteristics are similar to that of two sides of the same coin, the police should be granted the right of claim of warrant. While the police arrest of the criminal is eased, the propriety of the arrest could be decided by the judge after a simultaneous arrest of the criminal. Fifthly, whether by widening or restricting the admissibility of evidence acknowledgement of the suspect's interrogation report, the authority of a protocol of suspect interrogatory which is written by the police should be recognized and be eliminated of discrimination compared to the prosecutor. This is to save the time and effort that could be wasted on double interrogation. Sixthly, the police must be able to do an objection to supervision function of prosecutors for independence and neutrality of polices' work of investigation Seventhly, an establishment of a commission for investigation collaboration, which is a permanent consultation body, is needed. This will be a communication channel between the police and the prosecutors for smooth investigation collaboration and desirable cooperative relations. Eighthly, the independence and impartiality of the police investigation should be ensured. The police must be guaranteed of self-regulating system and independent criminal investigation.

As mentioned, this research proposes the ability that the police and the prosecutors can cooperate with each other in the work through the rational allocation of investigation authority. By removing the conflicting structure sustained so far and keeping the appropriate checking system and balances between them, the prosecutors will fulfill their duties of keeping the legality of the investigation and protecting of human rights and the police having their own authority and responsibilities will provide better quality of investigation service to the people. This will be a framework of realization of a just society and the confidence of people will be restored to both the police and the prosecutor.