불기소처분의 불복수단에 관한 연구

Abstract

ABSTRACT

A Study on the Control of Prosecution

Kim, Yong Duk Advisor : Prof. Kim, Jong Goo, Ph.D. Department of Law Graduate School of Chosun University

Disobedience means of a disposition not to institute a public action by a prosecutor includes complaints and re-complaints by the prosecutors' office, a request and constitutional complaint, and special prosecutor system as a means of control by the national assembly. The revised criminal procedure was passed by the national assembly on April 30. 2007 as it began as a judicial reform in 2003. On January 1 of 2008, the revised criminal procedure began to be executed. In particular, the procedure was revised in a wide range and greatly reinforced the protection of the rights of the accused and checked the authority of the prosecutors' office. The previous request system was confined to Article 123 or 125 of the Criminal Law (Abused Power), but the targets of the revised system were expanded to the disposition not to institute a public action in all crimes, and it confined the range of people to have the right to request to accusers (including the prosecutors in Article 123 or 125 of the Criminal Law). It designated prosecutors as the people who have the right to institute and support a public action. However, the complaint system of the revised procedure adapted the Klageerzwingungsverfahren of Germany as a legislative model without intensive speculation on it. It discouraged the orientation of the judicial reform committee which was established with the aim of protecting the rights of the accused against the disposition, and public opinion which needs a control system based on reinforced transparency of the prosecutors' authority. So there are a few problems that hinder its effective and successful management. This study consists of the following: Preface presents problems to be considered. Chapter 2 examines the meaning, advantages and disadvantages of the national prosecution and exclusive prosecution, and regulations and exceptions our country has adapted in respect to the basic principles of the public appeal in the Criminal Procedure. And it examines advantages and disadvantages of principle of discretionary prosecutions and principle of legality indictment, the attitudes of the present law and constitutional restrictions. It then examines the necessity to control the right of arraignment by prosecutors. Chapter 3 of complaint by prosecutors' office identifies prosecutors' obligatory notification and the intent, objects and procedure of prosecutors' complaint. Chapter 4 speculates on the intent and history of the request, its legislative process and Klageerzwingungsverfahren of Germany as a legislative model, the general characteristics and problems of the request, and presents suggestions. Chapter 5 identifies whether a petition with the Constitutional Court as a means of disobedience can be a relief means against the disposition not to institute a public action as the last effort to protect the basic rights of the public in spite of the expanded subjects of request. As a means to control the disposition, the special prosecution system is enacted through separate legislature against political crimes or absurdity dependant on political power for political neutrality of the rights of criminal legal action. Therefore, this study is to identify the features and problems of the special prosecution system. Chapter 6, the conclusion of the study, presents suggestions on the problems of the institutions relating to the request and the disobedience against the disposition, and desirable directions on control of the right of arraignment.