수사구조 개혁의 방향 - 독점에서 분점으로, 통제에서 견제로 - = he directionality of investigative structure reform – from monopoly to division, from control to checks and balances -

다국어 초록 (Multilingual Abstract)

The government’s recent prosecution reform legislation focuses on abolishing the Supreme Prosecutors’ Office(SPO) and establishing the Serious Crimes Investigation Agency and the Prosecution Office, transferring SPO’s investigative and prosecution functions to them. This paper, addressing the debate over the adjustment of investigative powers in the prosecution reform legislation, analyzes the trends in investigative reform over the past 30 years, evaluates the National Assembly’s legislative proposals, and proposes a desirable direction for investigative reform that is unshakable in the face of political power shifts.
This article analyzes the process of adjusting investigative powers over the past 30 years, including the conflicts represented by the adjustment of investigative powers, by era. As a result, it was confirmed that the process of adjusting investigative authority is currently shifting from an era of monopoly and control by the prosecution to one of division and mutual checks and balances. Furthermore, it confirms through Constitutional Court precedents that investigative and indictment powers are not the exclusive authority of prosecutors in SPO, and examines the pros and cons of the prosecution reform legislation based on its constitutional legitimacy. The four bills for prosecutorial reform, focusing on the abolition of SPO and the separation of prosecutors' investigative and prosecutorial powers, are evaluated as failing to properly implement the principles of democratic control over investigative powers. Accordingly, this article proposes a direction for investigative reform that is unaffected by changes in the political landscape. Furthermore, it proposes alternatives, such as overcoming the dual investigative structure to unify it and establishing checks and balances between investigative agencies and between the Prosecution Office and investigative agencies to ensure sound checks and balances on investigative power.
With the abolition of SPO becoming a reality, establishing a control model that ensures the independence and fairness of authority between each agency, and restoring cooperative relationships between the Prosecution Office and investigative agencies, as well as between each investigative agency, will be crucial for future reform efforts. This will protect the public’s human rights, addressing the risks of dual investigations and delays in case processing, while also enabling a focus on uncovering the truth.