한국 형사사법제도에서의 견제와 균형 원칙에 대한 비교법적 연구

A Comparative Legal Study on Checks and Balances in the Criminal Justice System of Korea : For the Debate on Reallocation of the Investigatory Authority

The Prosecutor s Office, an organization carrying out an imperative role in the criminal justice system, is a legacy of the principle of checks and balances attainable through a functional separation of powers. The principle of checks and balances achievable through a functional separation of powers has been recognized as a natural law based on an intrinsic human nature applicable to all times and places by all the states, and even long before the emergence of the concept of state as a sovereignty. However, ironically in Korea, the principle which brought forth the Prosecutor s Office in the criminal justice system has been collapsed by the Prosecutor s Office itself. Even when no checks and balances on the natural function of the Prosecutor s Office―prosecution authority as its name signifies―exists in Korea unlike the other states compared such as U.S, U.K, France and Germany in this research, Korea is the only state where the Prosecutor s Office dominates an additional crucial function―investigation authority―in the criminal justice system. A discretionary authority to request a warrant as an indispensable investigative measure has been monopolized by the Prosecutor s Office. Furthermore, the Prosecutor s Office is prescribed with a robust authority to direct investigations of the National Police Agency backed up by a legal obligation of police officers to obey the directions of prosecutors and an authority to request a removal or disciplinary action against disobeying police officers. The Prosecutor s Office are provided with personnel and material resources as well as a legal authority to actually investigate crimes by itself. The global standard is checks and balances attainable through functional separation of investigation and prosecution. However, despite of the fact that Korea requires a strict functional separation of investigation and prosecution to incorporate the principle of checks and balances into its criminal justice system more than any other states compared as checks and balances on the prosecution authority as a natural authority of the Prosecutor s Office is absent, the Prosecutor s Office in Korea dominates even investigations in addition to prosecutions. We have witnessed serious negative outcomes brought by the collapse of checks and balances and functional separation of powers allowing excessive or insufficient exercises of authorities by the Prosecutor s Office on its own discretion. Sadly, people―the ultimate source of any and all governmental power―have lost their belief in the Prosecutor s Office which was supposed to establish and promote the fairness and rule of law. Prosecutors are not angels but men. All men having power ought to be mistrusted. Now it is time for the Prosecutor s Office in Korea to return to its original position in accordance with the principle of checks and balances and a functional separation of powers which gave birth to the Prosecutor s Office in the criminal justice system. For this purpose, by analyzing impartial and proper methodological principles of comparative legal studies on the criminal justice system, this paper aims to provide the answers to the following questions: what and why important is the principle of checks and balances and a functional separation of powers as a natural law; in what manner and degree does the criminal justice system of other states comply with the principle; and what is the future direction and current problem of the criminal justice system of Korea from the perspective of such principle.