개정 형사소송법과 검찰청법의 쟁점과 향후과제

Revised Public Prosecutors' Office Act and Criminal Procedure Code passed at the plenary session of the National Assembly on April 27, 2022 and May 3 of the same year have many problems in both procedure and contents. Of the 2 revised laws that The Democratic Party of Korea put up the banner of ‘Complete Deprivation of Prosecution’s Investigative Power’ to reduce the authority of prosecution drastically, the key of the Public Prosecutors' Office Act was to reduce the scope of direct investigation by prosecutors drastically from 6 major crimes to 2, and the Criminal Procedure Code separated investigative power from the right of accusation to keep prosecutors who commenced direct investigation from prosecuting the case setting a limit on the scope of prosecutors’ supplementary investigation in the case sent by judicial police officers, preventing accusers from raising objections against the result of judicial police officer’s investigation, and also prohibited investigative agency from special investigation and banned forcing a confession or testimony about unrelated cases with an evidence secured by special investigation. The 2 revised laws can be viewed from the perspective of generalities and particulars, and from the generalistic point of view, separation of investigative power and right of accusation is entirely contrary to the stream of operation of criminal justice system in the advanced OECD countries, which is especially weakening the ability of prosecution to react against serious crimes. And there has not been a reasonable discussion or public hearing in the procedure of revision yet, which led to failure of securing procedural legitimacy and validity, and is also against consistency of legal system between law clauses. Viewing from the perspective of particulars, contradiction of revised contents with constitutional ideology, infringement of basic rights of the people due to limit on prosecutor’s right of direct investigation, irrationality in separation of investigative power and right of accusation, issues in interpretation with respect to the Clause 2, Article 186 of the revised Criminal Procedure Code, ban on special investigation and use of evidence secured by special investigation, abolition of the right of accuser to object are a poisonous clause. Therefore, readjustment of the scope of direct investigation by prosecutors through the revision of the Presidential decree, introduction of plain view which is admitted in the criminal justice procedure of the US, recovery of normal criminal justice system through the guarantee of political neutrality and personnel independence of prosecution as well as further revision of the Public Prosecutors' Office Act and Criminal Procedure Code are considered necessary.