형사사법체계 개혁과 ‘수사-기소 분리’의 의미

On June 11, 2025, members of the Minju Party of Korea introduced the “Four Prosecution Reform Bills”: the National Investigation Committee Act, the Public Prosecution Office (Without Investigative Personnel) Act, the Act to Abolish the Prosecutor’s Office, and the Serious Crime Investigation Office Act. These bills aim to structurally implement the “separation of investigation and prosecution” within the prosecution system, marking a significant advancement compared to previous bills based on the theory of functional separation. In criminal justice system reform, the concept of the “separation of investigation and prosecution” serves as a fundamental strategy to reduce the concentration and arbitrary exercise of prosecutorial power, while also upholding the principle of separation of powers within criminal procedures. This concept can be divided into two distinct theories: the “functional separation theory,” which advocates dividing investigative and prosecutorial functions within a single organization, and the “organizational separation theory,” which supports allocating investigative and prosecutorial authorities to separate, independent institutions. During President Moon Jae-in's administration, legislative reforms aimed to limit prosecutors' direct investigative powers as part of efforts to implement the “separation of investigation and prosecution.” However, because investigative personnel remained within the prosecution service, the separation was functional rather than organizational. This weakness in functional separation became more pronounced under the Yoon Suk-yeol administration, as demonstrated by the expansion of prosecutorial investigative authority through revisions to the “Regulations on General Investigation Rules and Mutual Cooperation between Prosecutors and Judicial Police Officers” and the “Regulation on the Scope of Crimes for which a Prosecutor May Initiate an Investigation.” This article proposes three key legislative measures for separating investigation and prosecution at the organizational level. First, regarding the prosecution office (without investigative personnel), since organizational separation requires excluding investigative personnel other than prosecutors, the institutionalization of the separation between investigation and prosecution should emphasize excluding investigative personnel rather than focusing solely on investigative authority. Second, concerning investigative organizations, the Serious Crime Investigation Office should be further developed and integrated with the National Police Agency’s National Office of Investigation to form a unified “National Investigation Office.” Third, an independent oversight entity, grounded in the principles of “citizen justice,” should be established to monitor and coordinate investigative operations at an appropriate level. As with all systems, there is no perfect system in criminal procedure. For the effective implementation of the proposed system, a clear understanding of the concept of organizational separation is essential, along with sustained legislative and administrative efforts to achieve it. Through these measures, the organizational separation of investigation and prosecution can be successfully established as a critical component of criminal justice system reform.