공소제기 후 수사의 허용범위

There is a consensus on the fact that it is impossible to arrest, detain, or conduct compulsory investigations such as seizure or search against the accused after the indictment. After the prosecution, there are various views on whether investigations are allowed and the scope of seizure of a voluntarily submitted Item, voluntary investigation such as investigation of witnesses and Interrogation of a defendant, but it is difficult to find a view to interpret this as a unified standard. The investigation of witnesses, Interrogation of a defendant, seizure of a voluntarily submitted Item after the indictment must all be ‘voluntariness’ as an investigation ‘after indictment’ and since it is an ‘investigation’, there is a common point that necessity and balance of the investigation must be recognized as an inherent requirement. While the scope of necessity and balance of the investigation can be broadly interpreted before a prosecution is filed, the investigation after a prosecution is an ‘exceptional’ investigation, and even a voluntary investigation should not go against the basic principles of the Criminal Procedure Act, such as partyism, and necessity and balance of the investigation can be recognized only when the infringement of the defendant or the person under investigation, such as the defendant’s right to defend, is minimized. Therefore, if the existence of voluntariness is evident, such as when the witness or the defendant, who is the subject of the investigation, requests an investigation, receives an investigation, or submits evidence, it does not infringe the defendant's right to defend or the basic rights of the subject of investigation, and there is no risk of violating or violating the basic principles of the Criminal Procedure Act, such as partyism, the necessity and balance of the investigation are recognized and the investigation is widely accepted. On the other hand, if the existence of voluntariness is not clear, it should be considered that investigations such as investigation of witnesses, interrogation of a defendant, and seizure of a voluntarily submitted Items can only be allowed to the extent that the necessity and significance of the investigation are recognized by judging whether there is a risk of violating the basic principles of the Criminal Procedure Act, such as whether the defendant's right to defend or the subject’s basic rights to investigate for each specific and individual case.