기소유예처분의 헌법소원에 관한 형사사법적인 평가

A constitutional petition is the only legal remedy available to a suspect who seeks to object to a suspension of prosecution. However, a constitutional petition is more or less restricted in its ability to provide constitutional control over suspension of prosecution by prosecutors, on account of the negative format employed in the main texts of decisions on constitutional petitions, and the restrictions on fact finding inherent in constitutional court proceedings. This paper reviews Constitutional Court Decision 2017 HeonMa 384 from a criminal justice perspective, focusing on the facts of the case as determined by the prosecutor, who is the respondent in the case, the applicable regulations, and the gist of the petitioner’s claims. Firstly, with regard to the application of the “special rules on crimes and complaints among relatives” to property crimes, the substantive criminal law distinguishes between mandatory exemption of punishment and crimes subject to victim’s complaint. However, the Regulations on Prosecutory Affairs provides that the type of the main text of decisions in both cases should be non-prosecution due to a “lack of authority to prosecute,” for the sake of convenience of case processing. In this regard, the Regulations on Prosecutory Affairs is in violation of the substantive law. In fact, most constitutional petitions against suspension of prosecution stem from the unjustifiable distinction between suspension of prosecution and non-prosecution due to a lack of authority to prosecute. Nevertheless, as the substantive criteria applicable to such cases, the Constitutional Court reviews “whether there exists an exercise of a prosecutor’s power that is so arbitrary as to require an intervention from the Constitutional Court,” on account of “an investigation that is markedly unjust or unfair, or an error in interpretation of the Constitution, application of the law, or judgment on evidence.” As for the formal criteria applicable to such cases, the Constitutional Court relies on the types of the main text of non-prosecution decisions prescribed by the Regulations on Prosecutory Affairs. However, Article 37, Paragraph 2 of the Constitution provides for statutory reservation of basic rights. Then, it may not be appropriate for the Constitutional Court to lay down the Regulations on Prosecutory Affairs, which requires non-prosecution decision due to a lack of authority to prosecute when there exists a cause for mandatory exemption of punishment, as a criteria to decide whether a suspension of prosecution—which represents the prosecutor’s tentative judicial judgment of the case—violated a petitioner’s basic rights. For this reason, by way of conclusion, this paper proposes the following improvements. In sum, if the special rules on crimes and complaints among relatives and the exempted adjudication based on the causes for mandatory exemption of punishment can be understood as statutory provisions based on a policy consideration that, even though a suspect’s action constitutes a crime, the state refrains from exercising its power of punishment in consideration of the special nature of the relationship between relatives, the prosecutory practices should be brought to alignment with the dual distinction under the substantive criminal law, so as to match the types of decisions under the procedural law, and allow for the incorporation of crime victims’ intentions in various formats. In other words, as the Criminal Procedure Act distinguishes between formal decisions such as rejection of indictment and substantive guilty/not guilty decisions, the Regulations on Prosecutory Affairs should be revised so that a prosecutor is required to render a decision of suspension of prosecution rather than a decision of non-prosecution due to “a lack of authority to prosecute” in cases where there exists a cause for mandatory exemption of punishment.