2018. 6. 21.자 수사권 조정 합의문상 사법경찰관의 불송치결정에 대한 통제 방법에 관한 헌법적 분석

A Constitutional Analysis of Control over the Police s Non-Transfer Decision in Government s June 21st Agreement for Reorganizaition of Investigative Prerogatives - Focusing on Comparison with the Control over the Prosecutors’ Non-Indictment Decision -

According to the Government s June 21st Agreement for Reorganizaition of Investigative Prerogatives, police can drop cases without any prior supervision of prosecutors. As in current criminal procedure act only prosecutors can indict, preventing inappropriate case drop decision of police and prosecutors plays a pivotal role in maintaining public faith in the criminal justice. The June 21st Agreement stipulates police must transfer cases to the prosecution if those involved such as victims make complaints. This seems to be an airtight control of police s termination of investigation. However, closer look in respective of constitutional law reveals blind spots which might infringe the victim s constitutional right to make a statement to a criminal court s judge. These weak spots could breach the separation of powers doctrine as well. Unconstitutionality mainly comes from the vagueness of the word victims and from limiting the scope of complaints. As prosecutors non-indictment decision also drop the case, it is same with police s non-transfer decision in nature. More than 60 years experience of control on the prosecutors non-indictment decision can shed light on the problem of the police s non-transfer control. Standing of complaints against the non-transfer decision should include the victims who are allowed to make a constitutional complaint against prosecutors non-indictment decision under the present criminal procedure act. Prosecutors control followed by judicial review must be made to the police s non-transfer decision. Criminal procedure act which prescribes these two elements can protect victim s fundamental rights to state his/her damage before a judge, and realize the separation of powers.