국회의원의 불체포특권 개선을 위한 법제적 연구

The privilege of freedom from arrest for members of the National Assembly is a privilege of the National Assembly with a long history. The privilege of freedom from arrest, established in the early 17th century, was a means to avoid pressure from the monarch at the time. The privilege of freedom from arrest has developed in various ways depending on the times and countries, and even in modern times, many countries stipulate the privilege against arrest in their constitutions according to their own circumstances. Since Korea's founding constitution in 1948 stipulated the privilege of freedom from arrest for members of the National Assembly, the current constitution stipulates it in Article 44. Although the privilege of freedom from arrest is a privilege of members of the National Assembly under the Constitution, controversy continues because this privilege has been misused. The reason why the privilege of freedom from arrest came to be at the center of controversy was because the era of authoritarian government was over, but it began to be misused and abused in the democratized political environment in the mid-1990s. In the 15th and 16th National Assembly, as many as 27 arrest motions were submitted to the National Assembly, but not a single case was processed. It was during the 19th National Assembly that this attitude of the National Assembly began to change. In response to criticism from the public that the National Assembly was bulletproof, four of the 11 arrest motions were passed. The privilege of freedom from arrest has the function of protecting the physical freedom of individual members of the National Assembly and ensuring free legislative activities, thereby ensuring the normal and independent functions and activities of the National Assembly from arbitrary suppression or oppression by the executive branch. Despite the constitutional meaning and function of the privilege not to be arrested, if the constitutional meaning and possibility are lost due to misuse and abuse, it seems necessary to have a realistic discussion on the existence of the privilege not to be arrested. If the privilege of freedom from arrest actually undermines the principles of representative democracy and the rule of law, it will lose its constitutional meaning. In particular, there is a problem that if members of the National Assembly continue to engage in legislative activities despite violating positive law by using their given status and authority, this may conversely undermine the constitutional order. There have been many voices calling for improvement regarding the privilege of freedom from arrest of National Assembly members. However, because there is an explicit provision in the Constitution, it is impossible to eliminate the privilege itself until the Constitution is amended. And even if the era of a country with the practical rule of law has arrived, the privilege of freedom from arrest can be seen as necessary to conduct state affairs fairly against external pressure. However, the current privilege of freedom from arrest must be improved to preserve the constitutional meaning. The basic content of the privilege of freedom from arrest stipulated in the Constitution should be considered impossible to change until the Constitution is amended. If so, the privilege without arrest should be revised through revision of the National Assembly Act, which stipulates the requirements and procedures for the privilege without arrest. To achieve this, once an arrest motion is submitted to the National Assembly, a vote must be held within 72 hours after 24 hours. It is necessary to give members of the National Assembly an opportunity to explain themselves along with the submission of consent to arrest, and to withdraw the consent to arrest if the National Assembly members themselves agree to undergo the investigation by voluntarily appearing. In addition, it is meaningful to include in the oath of members of the National Assembly a clause promising not to misuse or abuse the privilege of freedom from arrest.