수사권조정에 관한 제18대 국회의원의 인식 연구 : 형사소송법 개정과 관련하여 = Research of the 18th congressmen recognition to revisions to the criminal investigation : in relation to amendment of criminal procedure code

다국어 초록 (Multilingual Abstract)

Considering the data analysis and conclusions of this research regarding to investigation adjustment and criminal procedure code, a majority of the respondents agree that excessive authority of the prosecution charging the criminal investigation should be mediated even there are a few different opinions along with their former careers and parties. They also admit the view that it is desirable for police and the prosecution to have cooperative and equivalent relationship at the same time mutually regulating each other. While consenting to grant police much authority and independence in investigation, Some congressmen address that it is necessary not only to improve police system in order to reduce the public's suspicion on possibility of infringement of human right caused by the police's enforced authority but also to precise the current criminal procedure law including the secret investigations so as to ease conflicts between police and the prosecution. More specific results derived from analysis of this research and lawmakers' opinions are explained as follows:
First, it is need to restrain the abuse of the prosecution authority in the method of giving police investigation institute right.
Overwhelming majority (82.7%) supports the revision of criminal procedure code accepting investigation institute right driven by police. Necessity of restrain against prosecutor's misusing its privilege results in the support.
Second, when it comes to police investigation, the most essential quality of police is fairness, which is interpreted as outcome of prejudicial and careless ways to secure human right during the investigation process. Some opinions that opposing with the police investigation institute right also regard it as a retrogression since it could run counter to the criminal justice system even by leaving the human right for the worse.
Third, illegal secret investigations examining into both the prosecution and police should be strongly controlled. Making concerns about the current regulation to the police secret investigation standing in the main conflict between police and prosecutor, it is appropriate to provide legislation not only for the police but also the prosecution to accept lawful regulations on its secret examination in every aspect such as condition, procedure, and a permitted limit. This perspective comes from a purpose to prevent the both authorities from misusing their force by strengthening the control laws on secret investigation of police and its counterpart.
Forth, it is reasonable to approve police's suggestion that prosecutor should redirect the unfair investigation direction.
Fifth, assembly members who attend the research withhold their views about validity or reliability of prosecutor's investigation supervision in case that police take over the case that is before reported to the prosecution. This conclusion may comes from lack of understanding substance of law related to investigation right. we have to deal with the prosecution's investigation direction right and legalization of the secret investigations act in police and the prosecution together.
Sixth, the relationship between police and the prosecution should be mutually cooperative while controlling equivalently and restraining each of influence. Both criminal justice agencies belonging to each different headquarters are totally not vertical pecking orders each other but have to sustain mutually cooperative balances in order to realize the ideal of Criminal Procedure Code toward human right security and substantive truth.
Seventh, As desirable boundaries of the criminal investigation, the public security criminals need to belongs to police responsibility for instituting the investigation independently and its specific direction for the prosecution. This is a compromise view drawn 57.1% agreement from respondents for the boundaries of revision to the criminal investigation.
Eighth, the United Progressive Party among four parties(the Saenuri, the Democratic United Party, the Liberty Forward Party and the United Progressive Party) including independent lawmakers shows the highest recognition about the revision of the criminal procedure code and its acts and has critical stance to the prosecution. The Liberty Progressive Party shows the lowest recognition on the revision and seems not to have critical opinions toward the prosecution.
Lastly, the respondents from a non legal circle present more strong recognition on the revision criminal procedure code than those who from a legal circle.
The next step for the research accounts for ways to improve legalization, desirable revision to the investigation and police system.
For the first section, recommendation for the legislation improvement is introduced as followed.
First, Under the article 196 and its subsection 3, the current criminal procedure code merely delegates investigation authority to a subordinate law too much comprehensively by saying as long as specific matters of the prosecution's direction, leave the responsibility with presidential law. But specific matters in investigation ought to be delegated to the presidential law after provisions including more detailed contents such as who main body is, the target, and the limitation of investigation is prescribed.
Second, let us say that there is any possibility of the violation of human rights in police secret investigation course, it is reliable to prescribe the clear revised provision related to condition, procedure and boundary of secret investigation.
Third, any legal text having possible conflicts to interpretation should be corrected its contents clearly through the provision of the laws.
Forth, vague legal texts must be prescribed more definitely so as to get rid of any controversy on their interpretation.
Now for the second section, looking into the desirable way of revision on investigation readjustment, as the Public Prosecutor General agreed during the time of establishment of the Criminal Procedure Code, ideal investigation revision is "Investigation to the police, and Prosecution to the prosecutor" Nevertheless police has basic authority of investigation, the prosecution could take its responsibility for whole investigation supervision when there is any human right violation form police. We can explain about this recognition further more as follows:
First, it is necessary to prevent any kinds of infringement of the public's liberty and human right by opening the law which make the prosecution supervise the police while the police has a independent investigation right mainly on public security disorder.
Second, the prosecution's independent authority of investigation direction has to be regulated and controlled. It is an equal principle that the investigation direction of the prosecution should be controlled just as the police is.
Finally, both the prosecution and police are equally main bodies on investigation rights, they have to maintain equivalent cooperative relationship.
For the purpose of obtaining the justice and increasing effectiveness of criminal investigation processing, it is need to start with the fundamental recognition like＂The prosecution is special for laws and the police is special for investigation.
For the final section, let us take a look improvement plans for police system in order to decrease apprehension of human right abuse and to increase justice, quality.
First, it is concluded that we need to establish the justice and improved quality of police.
Second, professionalism in police duties is worth due consideration by separating it's duty with one for the prevention policing and the other for the judicial policing.
Third, the suspect's protocol written by police should be publicly read to prevent the police from fabricating the written report with changing its contents.
Forth, the current practical investigation is charged by a judicial police whose rank is the Senior Police Officer but it is recommendable to have a higher ranking judicial police.
Finally, it is required for the police system to be democratic and separative while standing a position as political neutrality.

목차 (Table of Contents)

• 제 1 장 서 론 = 1
• 제 1 절 연구의 목적 = 1
• 제 2 절 연구의 범위 및 방법 = 5
• 1. 연구의 범위 = 5
• 2. 연구의 방법 = 7
• 제 2 장 이론적 배경과 논의과정 = 10
• 제 1 절 수사권조정과 수사체계 운영현황 = 10
• 1. 수사권조정의 의의와 범위 = 10
• 2. 현행 수사체계의 운영현황 = 16
• 3. 내사의 의의와 통제 = 28
• 제 2 절 형사소송법 제196조 개정의 의의와 논의 = 34
• 1. 법 개정의 의의와 배경 = 34
• 2. 개정 형사소송법령에 관한 논의 = 38
• 3. 개정 형사소송법령에 대한 검토 = 44
• 제 3 절 선진 주요국가의 수사체계 = 51
• 1. 선진 주요국에 있어 검찰의 수사상의 지위 = 51
• 2. 선진 주요국의 검·경 수사체계 = 53
• 제 4 절 선행연구의 검토 = 63
• 제 3 장 연구의 설계 및 방법 = 69
• 제 1 절 분석의 틀 및 가설의 설정 = 69
• 1. 분석의 틀 = 69
• 2. 가설의 설정 = 71
• 3. 변수의 조작화 = 75
• 제 2 절 자료수집 및 분석방법 = 78
• 1. 설문지 구성 = 78
• 2. 표본설계 및 자료수집 방법 = 79
• 3. 분석방법 = 81
• 제 4 장 연구결과의 분석 및 논의 = 83
• 제 1 절 수사권조정에 관한 기술적 분석 = 83
• 1. 조사대상자의 일반적 특성 = 83
• 2. 수사개시권 인정에 관한 일반적 인식 = 87
• 3. 개정 형사소송법 및 대통령령의 주요 내용에 대한 인식 = 92
• 4. 바람직한 수사권조정의 범위에 관한 인식 = 105
• 제 2 절 특성별 차이분석 = 109
• 1. 수사개시권 인정에 관한 차이분석 = 109
• 2. 개정 형사소송법 및 대통령령의 주요내용에 관한 차이분석 = 118
• 3. 수사권조정의 범위와 형사소송법령에 관한 차이분석 = 131
• 제 3 절 분석결과의 논의 = 134
• 1. 수사권조정에 관한 기술적 분석결과에 관한 논의 = 134
• 2. 차이분석 결과에 대한 논의 = 142
• 제 5 장 결론 = 149
• 참고문헌 = 156
• ABSTRACT = 166