형사사법 영역에서 국가기능의 외주화ㆍ민간위탁

In this article, we examine the outsourcing of the prosecution function, which most clearly shows the nature and limitations of private consignment(contract with private), through the example of the United States. And we have approached the issue of internal investigative cooperation and the corresponding penalty reduction system in modern society, which best demonstrate the limitations of national law enforcement agencies’ availability with respect to human and material resources to investigate corporation crimes by introducing the experiences of Germany, Austria, and the Netherlands. Lastly, we examined whether the way the state operates, which utilizes the search and seizure capabilities of individuals that surpass the search and seizure capabilities of investigative agencies in a world where anyone can become a one-person broadcaster and media outlet, can be properly understood through the existing understanding of the private search and seizure law, through the example of the United States. Through a description of the delegation of state functions to the private sector, including a comparative review of the systems of several countries, we hope that this article will raise readers' awareness of the need to discuss fundamental issues, leading to further research and discussion. And we hope to continue researches and discussions on the following issues: whether the current legal provisions that allow the delegation of criminal justice-related state affairs, such as private prisons, wiretapping, or location information, to the private sector go beyond the scope of delegation or entrustment of authority under Article 6 of the current Government Organization Act. We expect that there will be discussed as well, whether the current outsourcing articles of acting laws have the potential to be unconstitutional because it falls not under the category of “affairs not directly related to the rights and duties of citizens” in Article 3 of the same Act. We hope that this article provides an opportunity to think about the idea that all criminal justice-related affairs in a modern state can be handled by civil servants as before. And we hope that this article will lead to discussions on specific issues such as the premise and conditions of privatizing state affairs that fit our reality and conditions, and post-dealing management.