재정신청사건의 기록 열람·등사 제한규정(제262조의2)에 대한 비판적 고찰

In Article 262-2 of the Criminal Procedure Act, it is enacted that "No one may be allowed to inspect or copy the documents and evidential materials relating to a case of petition for adjudication while the case is examined: Provided, That the court may permit a party to inspect or copy all or part of documents prepared in the proceedings of examination of evidence under the latter sentence of Article 262 (2)". The purpose of legislation of Article 262-2 is ① to protect investigation secrets and ② to prevent an overissue of Petition for Adjudication. However, in terms of legal character of criminal procedure, the nature of Petition for Adjudication must be viewed as judicial process. Therefore, to the first legislative intent, it is not reasonable to restrict inspection and copying of case record of Petition for Adjudication. On the one hand, Article 262-3 (1) provides that "The court may, when it renders a ruling under Article 262 (2) 1 or the withdrawal under Article 264 (2) occurs, require the petitioner for adjudication to bear all or part of the express incurred in the proceedings for the petition by ist decision". Thus, given the relationship between purpose and means, restricting on inspection and copying of case record to prevent an overissue of Petition for Adjudication didn't seem to be appropriate. Because, from the point of constitutional view, the inspection and copying of case record is one of the important rights in criminal proceedings with reference to the petitioner's right to know.