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宋廣燮 圓光大學校大學院 1990 論文集 Vol.5 No.-
The Criminal Procedure Code doesn's pursuit only truth to inclination of Criminal punishment, ask the Public Procedure, which is Due Process. The problem of harmony doesn't solve the conflict between voluntary search and the idea of safeguarding human rights in Criminal Justice. This important problem is widely discussed. Fragmentary and Superficial approachment is not problem solution of systematic, more synthesis and inclusive studies. Magna Charta to Due Process of law brought to birth of Due Process of law in Criminal Procedure with Revelation of the Princinple of Legality which restraint to motion of penalty himself of a King. This paper intends to be superior due process which is the fair process in the constitution to the principle of material truth which is the fundamental idea in the Criminal Procedure Law, on the basis of article 12 in the constitution. This paper aims to study a basic principle and the necessity of amendment through changes of the Criminal Procedure Law. Assuming that the criminal procedure law is a procedural law executing concretly criminal law, the principle of legalitly that is a fundamental principle of criminal law means only "no punishment whthout law", and in this care, law is a formal law and has to be reasonable democratic and justice law. I suggest that the principle of legality should be added by clearness of penalty clause and appropriation of penalty contents on account of clearness of law and material doctrine of due process. The criminal procedure should be operated on the basis of due process idea and the principle out of court, bearing a opinion of judge.