검사의 공소권 통제제도에 관한 연구

Abstract

Our Criminal Procedure Code acknowledges Charges exclusive attention and Principle of discretionary prosecutions on public prosecution of Articles 246 and 247. Therefore, prosecutors are fully in charge of authority and have extensive discretion. Prosecutors are national and independent investigators controlling over criminal cases such as investigation, trial procedures and trial execution, second judges and criminal administrators, and in particular, they have the greatest prosecution authority. Therefore, prosecutors have obligations to be fair and just in dealing with criminal cases but the public show distrust in their authority because of problems involving in unfairness, infringement on basic rights of victims, unfair prosecution and political neutrality. In particular, though judicial organizations have obligations to protect the public and victims from crimes through judicial organizations, if they do not prosecute cases against criminals who infringe on basic rights due to prosecutors' unfair non-prosecution, they violate their obligations to victims and infringe basic rights of the victims, which needs control. In our Criminal Procedure Code, against prosecutors' decision not to prosecute criminals, victims just appeal to the courts. Though civil participation system is operated, official suggestions are the main ways to deal with appeals. Legal non-prosecution is post-controlled by other judicial organizations, not by prosecutors. Therefore, to overcome such problems, prosecutor's prosecution monopoly is acknowledged and when non-prosecution is decided, if victims adopt dissatisfaction instead of readjustment measures such as a complaint, a system through which the public participate in the prosecution procedure or problems can be solved through criminal deliberation committee should be developed. If the problems are not solved with such measures, for insignificant crimes, private prosecution or Principle of discretionary prosecutions is recommended rather than principle of legal prosecutions in constitutional and criminal policy perspectives. However, for serious crimes, principle of legal prosecutions is recommended rather than prosecutor's discretion. Deliberation organizations in prosecutors are post-control systems as advisors. Of course, a pre-control system such as a criminal deliberation committee is operated. As it reduces excessive task of criminal justice system and settles disputes through a deliberation committee rather than a criminal justice system, it is expected that infringement on basic rights by criminal justice system disappears somewhat. Such systems have not been legislated, but they have gained positive evaluations and the public show high trust in prosecutors in that they are allowed to participate in the system. Therefore, if a pre-control system can be introduced centering on Grand Jury of the U.S.A., Prosecution Review Commission of Japan, Private Prosecution of Germany and the Civil Participation System that has been implemented without lthe legal binding force since 2003 can be legislated and activated, the public will pay more attention to lemented without lthe and academic circles will participate in it more positively. In the future, basic rights of the people will be guaranteed and their trust in lemented without lthe will be improved, which will bring big changes to criminal and judicial systems.