국제형사사법공조제도의 운영현황과 개선방안

The Status and Improvement Scheme of International Judicial Assistance in Criminal Matters

World interdependence and ease of communication, transport, trade and migration have brought about transnational organized crimes . It has become evident that the growing activities of organized crimes pose a serious threat worldwide. The regime/system of International Judicial Assistance in Criminal Matters is, therefore, more needed. Historically, International Judicial Assistance in Criminal Matters was implemented through the use of letters rogatory . The letters rogatory , issued by one court to a foreign court, requests that the foreign court take evidence from a specific person within the foreign jurisdiction or serve process on an individual or corporation within the foreign jurisdiction and return the testimony or proof of service for use in pending case. The idea of letters rogatory originated in civil law countries and spread to countries that follow the common law system. This letters rogatory was replaced by international treaty. Generally, international treaty is bilateral, but in some cases multilateral. Recently, there are trends moving from a regional multilateral treaty to a global multilateral treaty. At a regional level, there is the European Convention on Mutual Assistance in Criminal Matters , adopted on April 20, 1959, and its Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters , adopted on March 17, 1978. The provisions on mutual assistance in criminal matters of the 1990 Convention Implementing the Schengen Agreement supplement former European Convention on Mutual Assistance in Criminal Matters . At the global level, there is UN Model Treaty on Mutual Assistance in Criminal Matters (A/RES45/117) of December 12, 1990. The meaning of International Judicial Assistance appeared in Article 1.2 (This Convention does not apply to arrests, the enforcement of verdicts or offences under military law which are not offences under ordinary criminal law) and Article 2 (Assistance may be refused if request concerns a political offence, an offence connected with a political offence, or a fiscal offence; sovereignty, security, ordre public or other essential interests) of European Convention on Mutual Assistance in Criminal Matters is based on the sovereignty absolutism. However, we must keep in mind that current values of international law are moving from State security to human security. On the status of International Judicial Assistance in Criminal Matters , there are emerging tendencies toward the broadest meaning of International Judicial Assistance in Criminal Matters through the recent conclusion of multilateral treaties: European Convention on the Transfer of Proceedings in Criminal matters , UN Model Treaty on the transfer of Proceedings in Criminal Matters , and European Convention on the International Validity of Criminal Judgements . Above all, faced with growing activities of transnational organized crimes , the improvement scheme (direction towards improvement) of International Judicial Assistance in Criminal Matters lies in getting out of classical sovereignty category.