검사의 객관의무를 현실화하기 위한 몇 가지 제안

The objective obligation of the prosecutor can have meaning properly when the individuality and decision of the prosecutor that is a quasi-judicial authority are respected. However, while our prosecution organization system empathizes the uniformity under the principle of uniformity of prosecutors, it has a difficult structure for the objective obligation to be properly revealed since the field that acknowledges right and responsibility of prosecutors is narrow. Exclusion and evasion system should be acknowledged as a consideration of the quasi-judical authority status of prosecutors. Since rather the quality and result of the investigation may be differed by investigator than the external effect would be same by any prosecutor's decision, the prosecutor who has a ground for exclusion and evasion should be excluded from the corresponding case. Then, the objective obligation that may investigate the case that is advantageous for the suspect or the defendant may be properly realized. The custom that passively declares innocent but unconditionally appeals it should be gotten rid of. if a misconception or an illegality is revealed during investigation, the prosecutor should actively correct the mistake by declaring innocent first. Also, if the declaration of innocent of the court is proper and there almost no possibility to change, the prosecutor convince the defendant to give up an appeal. Prosecutors should be given considerable discretion to make such decisions without relying on the existing stiff approval system of the prosecution. In addition to the designated evidences, it discloses the advantageous materials for the defendant by disclosing entire document written by an investigative agency, so it shall not give any suspicions that the prosecution manipulates the case or conceals the evidence. The reports that proceed to the prosecution command and the Minister of Justice becomes a severe threat of the objective obligation of prosecutors as it deprives the time and authority to focus on investigation for prosecutors. This, it is appropriate that the part stated to report to the Minister of Justice in the persecution report administrative regulation should be deleted, the scope of internal report in the prosecution should be considerably downsized.