형사절차상 기본권 보장을 위한 형소법규정 및 실무현실에 관한 연구: 헌법적 형사소송의 원리에 기초한 분석적 고찰

The ideology of constitutional criminal procedure is one of the core elements of American legal culture. In the American legal system, criminal procedure is essentially a subcategory of the constitutional law and encompasses specific amendments of their written constitution. Criminal procedure has also been loosely defined in American law as the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. Some protections restrict the activities and discretion of law enforcement, eg US Constitution amendments IV and V. Others affect the amount and the type of process required in pre-trial and trial litigation: US Constitution amendment VI. The Korean Constitution, from the establishment in 1948 to the reformation in 1987, has been consistently based on the principles of human rights protection from the constitutionalism and specified the fundamental rights in criminal procedure. Korean Criminal Procedure Law, established in 1954, also widely adopted the basic principles of democratic criminal procedure under the enormous influence from the Ordinance No.176 of U.S. Military Government Office in Korea in May 1948. However, during the military autocracy since the military codetta in 1961, the Revitalizing Reforms in October 1973 and a military revolt in December 1980, the principles of [due process of the law] and [protection of human rights] were severely damaged for the sake of the political objectives. In this period, the increase of efficiency in Justice and maintenance of social order was regarded as the most important thing by the autocracy technocrats. From 1990s, as the economic development and advance of democracy, the principles of due process of criminal law began to be gradually restored. In June 2007, by the extensive reform of Korean Criminal Procedure Law, the elements of American criminal justice system were intensified, eg adversary system, direct examination and oral proceedings etc. Moreover protection of the rights of suspects, defendants and victims has been reinforced. However, it depends on the practice whether the new criminal justice system function properly. In this Article, I tried to introduce the American theories and precedents concerned with Constitutional Criminal Procedure generally and to research comparably whether the spirit of constitution is adequately reflected in Korean criminal procedure and constitutional criminal procedure could be practiced in the field.