검사의 사법경찰관리 교체임용요구권 및 징계요구권에 대한 법리적 검토

After the establishment of the Republic of Korea, the Prosecutor’s Office Act has outlined the prosecutor’s authority to suspend investigations and request the replacement appointment of judicial police officers. The Criminal Procedure Act has defined the prosecutor’s authority to direct investigations and the Punishment of Violences etc. Act has specified the prosecutor’s power to request disciplinary action and the replacement appointment of judicial police officers. The reason why prosecutors (the Prosecutor General or Chief Prosecutors of prosecutors' offices of all levels) exercise these powers, despite not having the appointing authority of judicial police officers (police officers), is due to the hierarchical, command-and-obey relationship between prosecutors and police judiciaries in investigations. The command-and-obey relationship between prosecutors and police judiciaries started during the Gabo Reform period when Japanese official Inoue’s intervention led to various legal changes, including the creation of the prosecutor system. During the era of the Japanese Occupation of Korea, the Japanese Government-General of Korea, aiming to more effectively control Korea, sought to place judicial police officers under the control of prosecutors. Unlike Japan’s Meiji criminal procedure laws, the Colonial Criminal Law of Korea is promulgated in Korea. According to this law, prosecutors not only directed investigations but also ensured judicial police officers obeyed their official orders. After Korea’s Independence, the U.S. military government in Korea attempted to reform the criminal justice system based on Anglo-American legal principles, asserting that “investigations are for the police, and prosecution is for the prosecutor.” This led to the establishment of an investigative department within the police bureau, which could investigate autonomously. The Ordinance No. 3, issued by the Legal Affairs Bureau, explicitly states that investigations fall within the police's jurisdiction. However, after the Prosecutor’s Office successfully captured communist and the U.S. military government in Korea promulgated legislation No. 176, “Revised Criminal Procedure Act” and No. 180, “Supplementary Provisions for legislation No. 176”, which introduced a warrant system issued by judges as part of the investigation procedure, the U.S. military government in Korea recognized the prosecutor’s authority to direct investigations. Furthermore, with the promulgation of legislation No. 213, “the Prosecutor’s Office Act”, the police lost their independent investigative power and the prosecutor solidified their position as the chief authority in investigations. After the establishment of the Republic of Korea, the laws such as the Prosecutor’s Office Act, the Criminal Procedure Act and the Punishment of Violence etc. Acts. were promulgated in order to maintain the authorities the prosecutors had acquired during the era of the Japanese Occupation of Korea. However, following the 2011 revision of the Criminal Procedure Act, police judiciaries were granted the right to initiate investigations. Then, in the 2020 revision, the relationship between prosecutors and police judiciaries shifted from a command-and-obey relationship to one of mutual equality. Consequently the duty of police judiciaries to obey prosecutors' orders was removed. However, prosecutors were still granted the authority to request supplementary investigations, re-investigations and disciplinary action. As a result, this does not accord with the legislative intent of the revised Criminal Procedure Act. Moreover, a broader concept of appointment includes disciplinary action, removal from duty, and replacement appointment, and the appointment falls under the authority of the appointing authority, which differs depending on the organization. The appointing authority for police officers(including police judiciaries) has the Commissioner General of the Korean National Police Agency, not the prosecutor. Therefore, the prosecutor’s authorities to request the replacement appointment or removal from duty of police judiciaries contradict both the Police Officials Act and the State Public Officials Act. Furthermore, a prosecutor’s authority to request disciplinary action against police judiciaries is also illegal. This is because disciplinary action is a mandatory act that must be taken by the disciplinary authority when there are grounds for discipline, and the disciplinary authority falls the appointing authority. However, prosecutors have neither the appointing authority nor, according to the related laws, are granted discretionary power to demand discipline, which also conflicts with the legal principles of discipline. Therefore, prosecutors should limit their role to notifying the appointing authority of police judiciaries about facts that constitute grounds for disciplinary action, removal from duty, or replacement appointment. It is necessary to amend the related laws to ensure that the appointing authority of police judiciaries exercises these powers.