刑事節次에서의 基本權 保護에 關한 憲法的 考察

Abstract

Criminal procedures have two propositions as follows: the necessity to discover substantive truth that it must prosecute and punish criminals and protect victims to maintain social order; request of human rights protection that human rights of the suspected and prisoners must be protected from risks that they might be punish though they are not criminals due to errors derived from incomplete judgement by man. That is, with the proposition that they must punish criminals to maintain public order, to promote the speed and mobility in investigation with proposes of finding and securing criminals, collecting and preserving evidences, its fitness has to be emphasized while human rights of the suspected must be guaranteed as they are assumed as innocent until they are finally judged as guilty. In criminal procedures, there is difference in execution as well as criminal procedures according to which a focus is given on, the two conflicting values, discovery of truth and human right guaranty. In the past, the purpose of the criminal law was truth discovery and when a trial uncovered the truth, justice could be realized. As it assumes possibility of truth examination, the criminal law is a faithful maid to discovery of objective facts. That is, it is not too much to say that the truth is a product of national power and authority. Substantive truth is not a simple concept that only facts are pursued, but an active idea that the person who commit crimes shall be punished. It is natural that continuous approaches to absolute truth should be done through national power to prosecute. Under this principle, as the need of punishment has priority, investigation before prosecution should be interrogated and lengthened for complete investigation of the suspected and complete collection of evidences. However, today criminal procedures experienced innovative changes in such term, and a focus should not be given on discovery of the truth to punish criminals, but how the truth can be discovered while human rights of the suspected and the prisoners are guaranteed; that is, on realization of proper procedures. It is not derived from infinite pursuit for the truth, but is based on the procedures to pursue the truth, trust in the procedures and approval of the results derived by proper procedures as correct. So the proper procedures are designed for human rights guaranty of the suspected and prisoners, where negative truth of no-punishment against the innocent persons lies. The proper procedures emphasizes the process of truth discovery rather than the truth discovery itself, and pursues satisfaction through discovery of the truth within the range that fair interests of others are not infringed. Of course, as the criminal procedures are national institutions, it should work for punishment of criminals, which is a formal exercise of punishment right. However, the criminal procedures have meanings in realization of proper procedures beyond exercise of national punishment rights. Their kernel lies in the guaranty of human rights in criminal procedures against the suspected and prisoners since the modern period. That is, to promote balanced harmony of the two propositions is a task of the criminal procedures in law-governed countries. In such reasons, the criminal procedures should be constitutional procedures which are governed by the principles of presumption of innocence and legal procedures.