검찰의 현주소와 법치주의의 위기

Constitutionalism which means a rule of law is a political idea designed to prevent arbitrary enforcement and abuse of power by imposing restrictions on the powerful and government power. The basic goal of constitutionalism does not lie in justifying the enforcement of government power, but in protecting the basic civil and human rights from state power. However, constitutionalism can also be misunderstood as a rule by law, which means the people in power govern the country with the law under their feet as a tool. In this circumstance, the law is more likely to suppress the basic rights of the public and justify state violence. With more than a half of the term having passed, constitutionalism in the present government is more or less closer to a rule by law not to a rule of law. In other words, despite the lip service to a rule of law, the spirit of constitutionalism is severely distorted by an authoritarian rule which undermines the basic human rights and degrades the law to a tool. At present, very few people believe that the spirit of law is being kept, which demonstrates a crisis of constitutionalism in Korea. Above all, the prosecution is more accountable for this crisis than anything else. It is the strongest law enforcement agency with a lot of power in hand such as investigation rights, supervision rights over the police investigation, rights to indict, to name just a few. In addition, our law gives the prosecutors the privilege to work in the interest of the public. On the contrary, the prosecution is currently neither following the spirit of law nor contributing to public interests while being subject to the political power as its advance guard. It is in the forefront of coercing governmental policies and suppressing the public with punishment as its weapon. On top of that, it is deep into securing and expanding its vested rights, which is the main reason why the general public are disappointed with and mistrust constitutionalism in Korea. In this context, a reform of the prosecution is very urgent to restore constitutionalism in the sense of a rule of law.