기소절차에서 국민참여 방안에 관한 법정책적 연구

Prosecutors possess a broad range of power over the whole procedure of criminal cases. For fair and efficient execution of the right of accusation, control is required to prevent the arbitrary decisions made by prosecutors and exclude political influence on the institution of public action. In this sense, the current law in force in Korea has limitations in performing its proper function, despite the diverse systems aimed at controlling the prosecutorial power; for example, a complaint and notification system has been put in place for non-prosecution dispositions and their underlying purpose and grounds. Other measures include compulsory prosecution procedures, restrictions on the direction and supervision of specific events by the Minister of Justice, and the special prosecutor system. These limitations have heralded the need for securing fairness through external intervention as a new way of controlling prosecutorial power, which can be achieved by public involvement. This study investigated the public involvement system implemented in the United States and Japan, and the study contemplated the introduction of such a public involvement system in Korea. In the United States, there is a grand jury system where the public participates in the course of public prosecutions as a member of a jury. In Japan, there is a Prosecution Review Commission system where, in an ex-post sense, the public participates in cases of non-prosecution dispositions by prosecutors. The grand jury system in the United States is itself an organization that determines the prosecution, and it can control both improper prosecution and non-prosecution by prosecutors. Meanwhile, the role of the Prosecution Review Commission in Japan is more of an advisory one that only screens the legitimacy of the prosecutors’ execution of the right of arraignment after the fact. In examining which type of public involvement is appropriate for Korean society, the paper concludes that not only is ex-post public involvement necessary, which can properly control prosecutorial discretion, but also the introduction of ex-ante public involvement is required in a limited range for the democratic control of improper prosecution.