헌법재판소의 기소유예처분 취소사건 심판절차에 대한 비판적 검토

The Constitutional Court of Korea recognizes a prosecutor’s disposition of deferred prosecution as a legitimate subject of constitutional complaint. When a prosecutor abuses their prosecutorial discretion and issues an unjust disposition of deferred prosecution, thereby infringing upon the fundamental rights of suspects and related parties, the Court may render a decision to cancel such disposition. In adjudication procedures concerning the cancellation of the disposition of deferred prosecution, it is essential to examine whether the prosecutor’s decisions regarding investigation and indictment were arbitrary. Accordingly, the disclosure of investigation records pertaining to the complainant and a thorough adjudication process are indispensable. However, in recent cases concerning the cancellation of the disposition of deferred prosecution, there have been instances where hearings proceeded without the complainant being able to access the investigation records during the adjudication proceedings. This occurred due to several procedural irregularities: although the investigation records submitted by the respondent prosecutor along with their written reply were included in the case file, they were not served to the complainant; although the complainant lawfully applied for the inspection and copying of the investigation records, which were part of the case file, the Constitutional Court returned the records to the prosecution at its own discretion and denied the application; and although the Court conducted a limited inquiry into facts ex officio using only a small portion of the records, it rejected the complainant’s request for inquiry into facts and request for commissioned delivery of documents, citing the return of the records. These practices demonstrate that the adjudication procedure was carried out in a manner inconsistent with legal standards and lacking in procedural fairness. As a result, the extent to which the complainant is able to substantiate their constitutional complaint has repeatedly depended on whether they were able to obtain the investigation records through a freedom of information request made directly to the prosecutor outside the adjudication proceedings. This not only constitutes a serious infringement of the complainant’s right to constitutional adjudication, but also threatens to undermine public trust in the Constitutional Court’s decisions in cases concerning the cancellation of the disposition of deferred prosecution. Accordingly, the Constitutional Court must faithfully comply with the Constitutional Court Act and its subordinate regulations by properly managing and serving the case records, responding to legitimate applications for inspection and copying submitted by the complainant, and actively conducting evidentiary investigation of the investigation records—which serve as key materials in hearings on the cancellation of the disposition of deferred prosecution—so as to ensure objective fact-finding. In addition, it is necessary to carefully revise the relevant procedural rules so that each step of the adjudication process is reasonably disclosed and communicated to the parties involved.