활동으로서 수사의 주체와 권한에 대한 소고- 미국 형사사법제도를 중심으로 -

The government issued its plan for restructuring criminal investigation aiming to reallocate the authorities involved with crime investigation. The plan provided the police: the equal status―instead of current hierarchy―with prosecutors; an independent authority to terminate an investigation without transferring it to the prosecutors; an authority to request a review to an independent committee if a warrant request is not processed by prosecutors without due cause. On the other hand, the plan guarantees the prosecutors: to retain its sole authority to prosecute and to apply for warrant; to be the primary investigator against certain types of crimes; to conduct its own investigation or to request further investigations by the police after a case has been transferred from the police; to request police officers to be penalized if a request for a reinvestigation is rejected without clear cause. As the plan is a mere agreement between the Korea National Police Agency and the Supreme Prosecutor's Office, for the plan to be specified as a binding law, it should be reviewed and debated by the National Assembly’s special committee for judicial reform. In this process of review and debate at the National Assembly, it worths revisiting laws of US on the subject and authority of investigation by an investigative activity with a critical view to seek an answer to the problems of our criminal justice system. The US separates an investigation authority from a prosecution authority through a limit on human resource available to prosecutors; criminal procedural law; and other laws and rules, thereby preventing the harmful effects suffered by our current criminal justice system where a prosecution authority is combined with an investigation authority by prosecutors. In addition, a profound understanding of criminal justice system, particularly on an investigative stage prior to a trial stage, of US which has maintained its court-oriented/ adversary trial for hundreds of years is requisite as the Constitutional Court of Korea and the Supreme Court of Korea promulgated that our criminal justice aims for court-oriented/ adversary trial. Although our criminal justice system traditionally classified as a continental law system has incorporated, in regards to court procedures after an indictment, a large components of court-oriented/adversary trial from a common law system, the discussion on a possible incorporation of investigative procedures before an indictment from a common law system has not been active though required to maintain a consistency between procedures before and after an indictment. This paper aims to provide a foundation for such discussions in the National Assembly to establish a proper and healthy reallocation of investigative authority by revisiting laws of US on the subject and authority of investigation.