형사절차상 협상제도의 법적정당성 및 도입가능성에 대한 비교법적 검토 -미국(Plea Bargaining)과 독일(Verständigung) 제도를 중심으로-

Plea Bargaining means any bargaining or negotiation between a prosecuting attorney(or judge) and a criminal defendant or his(or her) counsel, whereby the defendant agrees to plead guilty or nolo contendere, in exchange for promises, concessions, or considerations by the prosecuting attorney(or judge). Though there are many wide-ranging and negative criticisms on the Plea Bargaining System, criminal cases more than 95 percent in U.S.A are concluded easily and quickly through the system. However, the practical necessity and economic efficiency frequently stated on the views in favor of it can not be justified considering the value of justice and the purposes on the criminal procedure. In addition, the principle of nemo tenetur often expressed in a Latin maxim of ‘nemo tenetur seipsum accusare’ means that no one shall be compelled to be a witness against himself places the protection by the aid of self-protection act based on the privilege against self-incrimination and human nature as its essential part. Today the privilege against self-incrimination and Confession rule are regarded as having been originated from the principle of nemo tenetur. Considering this principle and Confession rule, Plea Bargaining should not be allowed to apply in our criminal procedure in order to strengthen the protection of the human nature and dignity which the principle of nemo tenetur seeks to protect and to protect the human’s free will.