형사절차상 협상제도 도입에 관한 고찰

A Study on introduction of the agreement system in criminal procedure

Criminal procedure has its prime objective in finding out of the substantive truth. With the notion that the ultimate goal of criminal procedure is to realize justice through the regulation of penalty that corresponds the responsibility, the criminal must get punishments equivalent to his/her responsibility by finding out the substantive truth. "Agreement", a word that has an image of making a deal or compromise, seems to be an inappropriate concept in the criminal procedure. In today's world, despite slight differences in contents, not only the Anglo-American legal system including the United States which is based on Offizialprinzip litigation system but also the continental legal system which takes a Parteienprinzip litigation structure implement the agreement system in their criminal procedure. Moreover, agreement has already become a universal phenomenon in criminal procedure of the 21st century and it is spreading worldwide. Demand for "agreement" is increasing in Republic of Korea as well. Nevertheless, even if the "agreement" system is necessary, it should not be implemented if it does not follow the judicial principle. Here lies the reason why examining the legitimacy of the agreement system is necessary. Examination on legitimacy of agreement system revealed agreement system as a whole is not unfair but its legitimacy depends on how the content is composed of. Above all, agreement system should be realized within the criminal law of Rechtasstaat. For this, mediators of the negotiation should be the judges. This guarantees the rights of defendantㆍplaintiff in the criminal procedure while getting rid of any concern about concentration of power to prosecutors when leading roles of the negotiation are given to prosecutors. Especially, the principle of innocent until proven guilty and the right to be tried in court by judges which are specified in Constitutional law should be guaranteed. The agreement system, however, must be applied only to minor offenses (For instance, crimes punished by under one year of prison time). Further more, in cases such as organized crime, drug crime, white-collar crime and corruptions of public servants, which by nature are difficult to investigate without information from inside sources, crimes eligible for agreement should be decided according to the charges. Moreover, in order to ensure defendants' rights, Compulsory lawyer policy should be introduced. Defendants should also be given the opportunity to withdraw negotiations and hold official trials before they are sentenced. The court should nullify the binding force of negotiations when new facts are discovered or there are changes in the preconditions for negotiations. It is a prerequisite to establish guidelines for punishments which are criteria of negotiations.