형사소송에 있어서 기소협상제도의 가능성과 한계

The great majority of criminal cases in the United States are disposed by plea bargaining rather than by trial. Plea bargaining is very often a negotiated plea, that is, a defendant’s agreement to plead guilty to a criminal charge with the reasonable expectation of receiving some consideration from the government. Sometimes this plea is the result of nothing more than implicit plea bargaining. But more common is explicit bargaining in which the defendant enters a plea of guilty only after a commitment has been made that concessions will be granted in his particular case. Regardless of evaluation on the plea bargaining, there is no denying that this process of negotiation for and granting of concessions can give rise to difficult and important legal issues. In Korea, Germany and Japan, it is the trial judge himself who reads the investigative documents and decides whether there is sufficient evidence to proceed to trial. According to some commentators, this procedural configuration undermines the presumption of innocence, for in each of these systems the trial judge is usually a trier of the facts as well. The recent approach in law reform in inquisitorial states is to introduce of Anglo-American adversarial reforms into their criminal procedures. Despite decades of biting criticism of American “Plea Bargaining” as a form of bargaining of justice, it has become understood worldwide that consensual procedural forms are an integral part of criminal procedure worldwide.