내사의 개념과 법적 쟁점에 관한 연구 - 형사소송법상 “강제수사”및 검찰사건사무규칙상 “수사사건”을 중심으로 - (A Study on the Concept and Legal Issues of Pre-investigation)

서지정보

· 발행기관 : 경찰대학 경찰대학
· 수록지 정보 : 경찰학연구 / 12권 / 3호 / 105 ~ 144페이지
· 저자명 : 오상지

초록

On Jun 20th. 2011, Minister of Justice, Minister of Public Administration and Security, Public Prosecutor General, and Commissioner General of National Police Agency agreed on the revised bill of the Criminal Procedure Code, which was approved without major changes on Jun 30th. Along the line of consent, whether NaeSa-stage80) cases are included in “all investigation” was at issue. If they are not, judicial police is free from Prosecutors' authority in NaeSa-stage. On March 15th, the Prosecutors Office revised its Regulation of Criminal Investigation. The regulation established new concept of “Susa81)-case system”, which includes NaeSa-cases into “all investigation”. It presents legal ground to command police officers on NaeSa-cases. In accordance with the Criminal Procedure, the Supreme Court perceives “the recognition of crime” as “the beginning of the criminal investigation”, while on the working level, booking of charges is considered to be the beginning. This discrepancy derived formal and practical theories about the issues such as the scope of NaeSa-cases, and possibility of compulsory investigation in NaeSa-stage. On the beginning of the criminal investigation,government may conduct criminal investigation including compulsory methods, and the suspects enjoy constitutional rights. Thus, the meaning of “the beginning” must be set by the Criminal Procedure Code. Not by the rules, regulations, or any lower- level legal basis. Being that settled, what matters now is “the recognition of crime”. There is no clear codes, rules, regulations or even guidelines about the meaning of it. It completely depends on the prosecutors or police officers of each case. The “Susa-case system” does not present clear standard on which cases shall be Susa cases. Criminal investigation infringes upon one's rights. Thus, clear and precisive standards to test the beginning of investigation are requested. Those standards shall guarantee legal predictability about the beginning, and constitutional rights.

영어초록

On Jun 20th. 2011, Minister of Justice, Minister of Public Administration and Security, Public Prosecutor General, and Commissioner General of National Police Agency agreed on the revised bill of the Criminal Procedure Code, which was approved without major changes on Jun 30th. Along the line of consent, whether NaeSa-stage80) cases are included in “all investigation” was at issue. If they are not, judicial police is free from Prosecutors' authority in NaeSa-stage. On March 15th, the Prosecutors Office revised its Regulation of Criminal Investigation. The regulation established new concept of “Susa81)-case system”, which includes NaeSa-cases into “all investigation”. It presents legal ground to command police officers on NaeSa-cases. In accordance with the Criminal Procedure, the Supreme Court perceives “the recognition of crime” as “the beginning of the criminal investigation”, while on the working level, booking of charges is considered to be the beginning. This discrepancy derived formal and practical theories about the issues such as the scope of NaeSa-cases, and possibility of compulsory investigation in NaeSa-stage. On the beginning of the criminal investigation,government may conduct criminal investigation including compulsory methods, and the suspects enjoy constitutional rights. Thus, the meaning of “the beginning” must be set by the Criminal Procedure Code. Not by the rules, regulations, or any lower- level legal basis. Being that settled, what matters now is “the recognition of crime”. There is no clear codes, rules, regulations or even guidelines about the meaning of it. It completely depends on the prosecutors or police officers of each case. The “Susa-case system” does not present clear standard on which cases shall be Susa cases. Criminal investigation infringes upon one's rights. Thus, clear and precisive standards to test the beginning of investigation are requested. Those standards shall guarantee legal predictability about the beginning, and constitutional rights.

참고자료

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