한국적 수사구조론의 새로운 모색

A Study on the New Korean-specific General Principle of Criminal Investigation Process

The purpose of this paper is to establish a Korean-specific general principle about criminal investigation process that could guide and lead the legislative process and interpretation of the Korean Criminal Procedure Law. The ongoing discussions on ‘the Arbitration of the Investigation Rights between Prosecutor s Office and Police’ are insufficient as a task of seeking the investigation procedure that ensures the human rights of the suspects. Therefore, this paper compares the two prototypes of general theories on the investigation structure which were important during the discussion of the investigation process reform in Germany in the early 2000s, namely the ‘partizipatorische Ermittlungsverfahren’ and ‘Strengthening Model of Rights of Suspects.’ Based on these principles, it is necessary to provide the investigative authority with the obligation to guarantee the maximum participation rights of the suspects and counsel (Participation Principle), if the limitation of participation rights is unavoidable due to the conflict with other values such as the purpose of investigation or protection of the victim, the restriction of participation rights should be compensated for by strengthening the right (Defensive Principle).