사법경찰관의 불송치 결정권의 문제점에 대한 검토

The purpose of the non-refusal decision is to guarantee human rights through the expeditious closure of the investigation, reduce the damage caused by double investigations, and strengthen the investigation capacity by giving the police accountability. Many problems were raised after the adjustment of the investigative authority. In particular, criticism has been raised that the police's decision not to send the case without the prosecutor's control may lead to the problem of concealment of the case. However, this criticism starts from the perspective of the need for control by the prosecutor. In other words, it cannot be said to be valid because the adjustment of investigative rights is viewed from the perspective of control. The beginning of the adjustment of investigative rights is for judicial police officers to secure their own investigative rights away from the prosecutor's command of investigative rights. Even if it is an independent investigation right, the control method must exist, but it does not necessarily have to be a control method by a prosecutor. The concern of not being obligated to discover substantive truth is not just a matter for the police. This question is not a question of the subject of the right to terminate the investigation, that is, who has the right to terminate the investigation, but rather whether there is a control device for it. In judicial proceedings, fairness must be secured when any authority is granted to the police or when the police exercise the authority granted to them. However, it does not necessarily mean that fairness can be secured by the direction and supervision of the prosecution. The Korean Constitution is based on the rule of law. Whether to distribute or monopolize investigative rights belongs to the system. The issue of the distribution of investigative rights is related to the guarantee of the human rights of the people, and it is important that it is a means that meets the purpose rather than the question of which direction it will be made. It is judged that the abolition of the prosecutor's right to command the investigation is not directly aimed at guaranteeing the human rights of the people, but rather to exclude the centralization of power due to abuse of state power. Therefore, granting the police the primary right to investigate can be said to be close to the realization of criminal justice, that is, the initiation and progress of equal investigations.