검찰제도 개편과 강제수사 과정에서의 적법성 담보

초록

n recent years, reforms of Korea’s public prosecution system have proceeded in the direction of reducing or eliminating prosecutors’investigative powers and limiting their role primarily to the maintenance of public prosecution. As a result, the basic structure of Korea’s criminal justice system, which had largely followed the continental legal tradition since the enactment of the Criminal Procedure Act, has undergone a fundamental transformation. In particular, the prosecutor’s function of exercising judicial control over the police has been weakened, raising concerns that the protection of citizens’ fundamental rights may also be undermined. Against this background, careful consideration is now required as to how the lawfulness of compulsory investigations can be properly safeguarded. Safeguarding procedural legality in compulsory investigations should contribute to the fundamental goals of criminal justice, namely due process and the protection of human rights. It should also function as a mechanism for correcting errors that may arise during the investigative process. Above all, a high level of legality in compulsory investigations can be secured by enhancing the transparency of investigative procedures and strengthening judicial control by neutral and independent third-party authorities. It is now necessary to move beyond the formal distinction between the police investigation stage and the prosecutorial investigation stage. Instead, the investigative process should be classified more substantively by focusing on the point at which major compulsory investigative measures, such as arrest or detention, are initiated. Once such measures are implemented, stronger institutional safeguards should be introduced to ensure the legality of the investigation. From that point onward, the investigation may be understood as a preliminary stage leading toward prosecution. Accordingly, the suspect should no longer be regarded merely as an object of investigation, but as a procedural participant with a status approaching that of a party to the criminal process. For this reason, certain limits should be imposed on both the duration and methods of investigation. The systems of arrest and detention also require comprehensive reform. A wide range of reform proposals should be actively discussed, including the abolition of the police detention period, the establishment of time-based review mechanisms to assess the continued necessity of detention after arrest, reconsideration of the pre-arrest detention warrant system, and the introduction of a mandatory detention review hearing. In addition, greater transparency must be secured in procedures involving compulsory measures against property, such as search and seizure. Future reforms in the field of criminal justice should not remain confined to the question of “who will replace the role previously performed by prosecutors?” Rather, the protection of citizens’ fundamental rights and the principle of due process should be made more effective through a broader set of reforms: enhancing transparency throughout the entire process of compulsory investigation, appropriately dispersing investigative powers, establishing staged and efficient judicial review, and enacting detailed legislative safeguards. This should be the proper direction of Korean criminal procedure after the reform of the public prosecution system and the diversification of investigative authorities.

키워드