공수처 검사의 지위와 법률해석- 헌법재판소 2021. 1. 28. 선고 2020헌마264, 681(병합) 전원재판부 결정 -

The Constitutional Court's decision on January 28, 2021 (Decision No. 2020Hun-Ma264, 681 (Consolidated)) overcame the argument of unconstitutionality and established the legal status of the Corruption Investigation Office for High-ranking Officials(CIO) as an independent investigative agency. Therefore, this decision holds significant importance. However, even with this decision, it does not seem that all questions have been completely resolved. According to the decision, if the status of a CIO prosecutor is considered the same as that of a prosecutor in the Prosecutors' Office, with only differences in duties, then a CIO prosecutor should be able to fully perform their duties as a prosecutor even when they do not have the right to prosecute. This raises doubts about the difference between situations where the law clearly distinguishes between possessing both investigative and prosecutorial powers and possessing only investigative powers. This article understands that the core argument of the decision is the distinction between duties and status of prosecutors. Regarding the CIO prosecutor’s authority to request warrants, this decision's view that the existence of prosecutorial powers should not be linked to the authority to request warrants is seen as treating the issues of duties and status as the same. This sentence has two meanings: ① the existence of prosecutorial powers and the authority to request warrants are not interconnected. ② the reason for this judgment is that the issues of duties and status are not identical. In the explanation of the status of CIO prosecutors, this article approaches the concurrent appointment theory by considering the exercise of prosecutorial powers as the core criterion. However, as pointed out in previous studies, if we adhere to the concurrent appointment theory or the dual status theory, which equate 'prosecutorial power = prosecutor’s status' and consider one a prosecutor only if they possess prosecutorial power in individual cases, then we must individually examine whether the status of a prosecutor is recognized for the prosecutor of the respective Prosecutors' Office in cases where certain laws, such as Article 4, Paragraph 2 of the Prosecutors' Office Act, exclude the prosecutorial power of the prosecutor. Thus, the above discussion on principles and exceptions does not apply exclusively to CIO prosecutors.