검찰제도에 관한 헌법적 연구

Constitution of the Republic of Korea sets out that the appointment of the Prosecutor General shall be referred to the State Council, in order to limit the authority of the President. The constitution also states that warrants must be issued by a judge through due procedures upon the request of a prosecutor, providing a double control in addition to general warrantism. This implies that the constitution adopts the prosecution system, and the prosecution system is partly a Constitutional matter. Thus, abolishing the prosecution system falls under the limit of legislative discretion. However, the constitution does not clearly stipulate whether the prosecution has the right to prosecute, the right to investigate, and the right to command investigations to other investigative agency. The way the constitution's adopts the prosecution system in an indirect manner is not appropriate since it causes unnecessary political and social controversy over the prosecution reform. Therefore, it is essential to ensure the independence of the prosecution by introducing more specific constitutional regulations, such as regulations on the guarantee, term, and dismissal method of the prosecutor general, and special regulations for prosecutors who are not under the command of the prosecutor general. At the same time, it is necessary to adopt specific constitutional regulations to set a device for the check and control of the prosecution authority.