수사지휘권의 헌법적 근거 및 한계에 관한 연구

In Korea, the constitutional exclusive warrant's request right is invested to the prosecution due to a historical reason. By the way, the prosecution insist that the prosecutor's competence of criminal investigation in the criminal procedure law is based on the constitutional right. But this assertion has not validity on following grounds. Firstly, clause 3, article 13 of the Korean Constitution only states the warrant's request right and not enact about the criminal investigation. Secondly, the historical aim of this constitutional right is that human rights was protected from indiscreet warrant's abuses of many investigative agencies. Therefore the competence of criminal investigation has nothing to do with the constitutional right. Thirdly, according to comparative legal interpretations, there are no countries to state the warrant's request right in Constitution, such as US, EU, UK, France, Japan. Hence this right is not a constitutional matter but a legal matter. In conclusion, the prosecutor's competence of criminal investigation is not base on the constitutional right. In addition, the competence is limited to the balance of powers and the due process of law, therefore active and expansive investigation directions of prosecutor are not permitted.