검사의 위법ㆍ부당한 공소제기에 대한 형사책임의 모색 — 공소권남용과 직권남용죄(헌법재판소 2024. 5. 30. 선고 2023헌나2 결정)를 중심으로 —

A prosecutor, holding the status of a quasi-judicial body as a representative of the public interest and an agency for the protection of human rights, must realize concrete justice through the appropriate exercise of discretion in performing duties related to the initiation and maintenance of public prosecution. They must ensure the realization of the state's penal power based on substantive truth and, in that process, bear the duty to advocate for the legitimate interests of the defendant. Nevertheless, in cases where a prosecutor abuses the power of prosecution while failing to uphold these duties, it is both critical and necessary to seek criminal liability as a means of sanction. As a solution, from an interpretive standpoint, the crime of Abuse of Authority can be recognized. In practice, to determine whether the requirements for the abuse of prosecutorial power—namely, ‘gross deviation of prosecutorial discretion (objective requirement)’ and ‘prosecutor's intent (subjective requirement)’—are met, several factors must first be proven by evidence. These include all circumstances from the commencement of the investigation to the filing of the indictment, such as the background of the investigation's start, the methods and processes involved, the results, and the specific grounds for choosing to prosecute rather than granting a suspension of prosecution despite proven charges, as well as the scope of the indictment. Next, by synthesizing all such proven circumstances, a judgment is made on whether they meet each requirement. If ‘gross deviation of prosecutorial discretion’ and ‘prosecutor's intent’ are established through this process, it should be considered that ‘abuse of authority lacking necessity and appropriateness for prosecution’ and the ‘prosecutor's criminal intent’ are also established. Therefore, when an abuse of prosecutorial power is recognized, the crime of Abuse of Authority should also be affirmed. Furthermore, as part of the broader discussion on seeking criminal liability for a prosecutor's unlawful or unfair abuse of prosecutorial power, it is necessary to consider measures such as codifying the prosecutor's duty of objectivity and recognizing the crime of distortion of law.