플리바게닝 과정에서 검사의 실제 역할에 대한 이해 및 시사점 ― 미국에서의 플리바게닝 제도에 대한 논의를 중심으로 ―

As the court-oriented aspects of the criminal procedure in South Korea have been strengthened, interest in the plea bargaining system is increased. This is because a trial process becomes more complicated, and the admissibility of police report is more scrutinized by the court. Therefore, many argue that plea bargaining system, which more efficiently handle cases, should be introduced. However, there has been a fierce debate over the introduction of the plea bargaining. This is because it is a system that prioritizes a consensus between the prosecutor and the accused, rather than the nature of the criminal case. Among legal academia and civil organizations, it is widely recognized that the state should make efforts to search for the truths and administer justice, instead of negotiating with the accused in a secret room. Prosecutors, on the other hand, usually argue that the introduction of plea bargaining is inevitable in order to avoid an increasingly cumbersome trial process. However, this debate on the introduction of plea bargaining system mostly focuses on the theoretical and structural aspects of the criminal justice system. On the other hand, there is a lack of research on what plea bargaining can bring about in the criminal justice system. This article examines the reality of plea bargaining in the United States, where it is actively taking place. The role of the prosecutors during the plea bargaining resembles a final-arbiter, who unilaterally exercises the bargaining authority, rather than a negotiator in a free contract process. Indeed, when the prosecutors determines the terms of the plea bargaining in a superior position, the defendant is substantially bound by these conditions. This is largely because most defendants have a difficulty in hiring a competent lawyer and in gathering sufficient information on the overall process of the plea bargaining. Based on the understanding of these points, more elaborate discussion is needed. when discussing the introduction of plea bargaining in South Korea. As the reality in the United States shows, the prosecutor remains in a superior position over the defendants in the course of the plea bargaining. More serious problem is likely to arise if the plea bargaining system alike the U.S. is introduced in South Korea. This is because the Korean prosecutors, who monopolize the investigation, the prosecution, and the execution authorities, will dominate the overall criminal process. Therefore, more detailed discussion is required to recognize these problems and to prevent the abuse of prosecutorial powers. In addition, it is desirable to go beyond the simple pros and cons for the plea bargaining, and more specific discussion is needed by referring to foreign cases.