형사소송법 개정의 문제점 - 공판부분 (The drawbacks of the change in the Criminal Procedure Law - the trial section)

서지정보

· 발행기관 : 한국형사법학회
· 수록지 정보 : 형사법연구 / 23권 / 1호 / 57 ~ 115페이지
· 저자명 : 이용구

초록

After the change of the Criminal Procedure Law in 2007, some problems occurred as a result of operating the criminal trial in the quasi-prosecution procedure, the criminal discovery, the presentence investigation, the sentencing hearing, and etc.
First, in the quasi-prosecution procedure, although the crime was expanded to all crimes, the relator was not regarded as the applicant. Also, by putting the quasi-prosecution procedure case under the jurisdiction of the high court, the procedure became inconvenient for the applicant as the quasi-prosecution procedure case was not handled quickly. The fact that institution and support of the public action was being managed passively by the prosecutor as he took charge of it after the decision of the indictment was another problem in the quasi-prosecution procedure. In addition, the criminal discovery had many problems. It did not include the criminal discovery in the stage of the investigation, and the controversy considering whether the list of the record of investigation was unintentionally included in the discovery was still remained. The worse problem was that the sanctions used when the prosecutor did not perform the decision of discovery were much insufficient. Moreover, the presentence investigation and the sentencing hearing had not been thorough enough to carry out those investigations since the sentencing guidelines were established as the legislation was not made when changing the Criminal Procedure Law in 2007. Lastly, the protecting of the crime victims and the victims' participation in criminal proceedings were the weakest parts in the reform of the Criminal Procedure Law in 2007. Considering these parts, there are already many amendments submitted to The National Assembly, and the amendment made by the committee for the reform of the Criminal Procedure, composed of people appointed by the Korean Criminal Law Association, is also focusing on these parts. This paper is proposing the direction of reforms after reviewing the amendments. To begin with,because the purpose of the quasi-prosecution procedure includes controlling the prosecutor's discretion of the indictment as well as protecting the crime victims, it is right to consider the relator as the applicant, and it should be examined to assign the jurisdiction to the district courts as the quasi-prosecution procedure case increases. The most important one is that the person of the institution and support of the public action should be the lawyer, not the prosecutor, as it was in early days. Next, the criminal discovery about the record of investigation should be adopted to substantially guarantee the suspects' the right of the attorney's assistance in the stage of the investigation. It is also suggested that it needs to be clarified that the list of the record of investigation is the object of the discovery. Moreover, there are some suggestions to impose sanctions toward the disobedience of the discovery decision of the courts. When the disobedience which is about the police report that should surely include the discovery brings negative effects on the accused exerting the right of defendant, it can be considered the ground of the dismissal of public prosecution. However, when it does not, the courts need to read documents in advance, offer certain amount of time for the prosecutor to fulfill the decision of discovery, and dismiss the public prosecution to impose sanctions toward the disobedience. In addition to those methods, in other cases, it can be appropriate to the courts to insist fulfilling the decision of discovery through the interruption of the trial. In matters of the presentence investigation, because the courts can be the only subject of the investigation, it is adequate to make the investigation of a probation officer and a sentencing investigator coexist. Finally, the amendment suggested by the committee for the reform of the Criminal Procedure Law is completely agreed, which is all about the protecting of the crime victims as well as the crime victims'participation in criminal proceedings.

영어초록

After the change of the Criminal Procedure Law in 2007, some problems occurred as a result of operating the criminal trial in the quasi-prosecution procedure, the criminal discovery, the presentence investigation, the sentencing hearing, and etc.
First, in the quasi-prosecution procedure, although the crime was expanded to all crimes, the relator was not regarded as the applicant. Also, by putting the quasi-prosecution procedure case under the jurisdiction of the high court, the procedure became inconvenient for the applicant as the quasi-prosecution procedure case was not handled quickly. The fact that institution and support of the public action was being managed passively by the prosecutor as he took charge of it after the decision of the indictment was another problem in the quasi-prosecution procedure. In addition, the criminal discovery had many problems. It did not include the criminal discovery in the stage of the investigation, and the controversy considering whether the list of the record of investigation was unintentionally included in the discovery was still remained. The worse problem was that the sanctions used when the prosecutor did not perform the decision of discovery were much insufficient. Moreover, the presentence investigation and the sentencing hearing had not been thorough enough to carry out those investigations since the sentencing guidelines were established as the legislation was not made when changing the Criminal Procedure Law in 2007. Lastly, the protecting of the crime victims and the victims' participation in criminal proceedings were the weakest parts in the reform of the Criminal Procedure Law in 2007. Considering these parts, there are already many amendments submitted to The National Assembly, and the amendment made by the committee for the reform of the Criminal Procedure, composed of people appointed by the Korean Criminal Law Association, is also focusing on these parts. This paper is proposing the direction of reforms after reviewing the amendments. To begin with,because the purpose of the quasi-prosecution procedure includes controlling the prosecutor's discretion of the indictment as well as protecting the crime victims, it is right to consider the relator as the applicant, and it should be examined to assign the jurisdiction to the district courts as the quasi-prosecution procedure case increases. The most important one is that the person of the institution and support of the public action should be the lawyer, not the prosecutor, as it was in early days. Next, the criminal discovery about the record of investigation should be adopted to substantially guarantee the suspects' the right of the attorney's assistance in the stage of the investigation. It is also suggested that it needs to be clarified that the list of the record of investigation is the object of the discovery. Moreover, there are some suggestions to impose sanctions toward the disobedience of the discovery decision of the courts. When the disobedience which is about the police report that should surely include the discovery brings negative effects on the accused exerting the right of defendant, it can be considered the ground of the dismissal of public prosecution. However, when it does not, the courts need to read documents in advance, offer certain amount of time for the prosecutor to fulfill the decision of discovery, and dismiss the public prosecution to impose sanctions toward the disobedience. In addition to those methods, in other cases, it can be appropriate to the courts to insist fulfilling the decision of discovery through the interruption of the trial. In matters of the presentence investigation, because the courts can be the only subject of the investigation, it is adequate to make the investigation of a probation officer and a sentencing investigator coexist. Finally, the amendment suggested by the committee for the reform of the Criminal Procedure Law is completely agreed, which is all about the protecting of the crime victims as well as the crime victims'participation in criminal proceedings.

참고자료

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