수사에 관한 개념적 오류 비판 = A Critical Conceptual Approach to the Investigation

다국어 초록 (Multilingual Abstract)

In the meantime, the investigation has been defined as the activities of investigative agencies to discover and secure criminals and collect and preserve evidence in order to clarify whether or not prosecuted and to maintain the prosecution. However, this definition of procedural provision for ‘prosecuting and maintaining the prosecution' is not justified from a logistical point of view as well as from a criminal procedural point of view. First, from the logic point of view, the process of 'prosecuting and maintaining the prosecution' is not an essential factor of the investigation. This is like defining 'elementary education' as 'education that elementary school students get to progress to secondary education'. Second, from the perspective of criminal law, the purpose of the criminal procedure is to find the real truth, and the means to find the truth must be criminal investigation. Therefore, the purpose of the investigation should be also to find the truth. 'Prosecuting and maintaining the prosecution' are just a component of the criminal procedure. In other words, 'prosecuting and maintaining the prosecution' itself can not be the purpose of investigation as 'proceeding a criminal procedure' itself can not be a purpose of investigation. This definition of investigation seems to be based on the German Criminal Procedure Act Article 160 (1) that the prosecutor should investigate the facts in order to decide whether to prosecute. This definition, however, is interpreted as a preparatory activity for 'prosecuting and maintaining the prosecution', so that the real purpose (finding the truth) is dismissed such that the investigation without practical possibility of public prosecution is regarded as useless. In addition, investigations by judicial police who are not authorized to prosecute are an unintended investigation if there is no command of the prosecutor. Therefore, the provisions of the prosecution do not involve police investigations. It is necessary to define the concept of the investigation based on a combination of the 195 and 196 criminal procedure laws, the rules of logic and definitions under the consideration of cases in other countries. In this case, the investigation should be newly defined as ‘the activities of the relevant authorities to discover and secure criminals to collect and maintain evidence'. In the meantime, the existing concept of investigation has been used as a supporting argument for the inseparable relationship between investigation and prosecution, thus guaranteeing the monopoly status and authority of prosecutors on investigation. However, a new conceptual approach to the investigation that meets the reality will contribute to establishing the identity of the investigation by suggesting ideal directions in the interpretation and formation of the criminal procedure law.

참고문헌 (Reference)

• 1 신동운, "형사소송법I" 법문사 1996
• 2 이은모, "형사소송법" 박영사 2014
• 3 이재상, "형사소송법" 박영사 2006
• 4 이재상, "형사소송법" 박영사 2017
• 5 "헌법재판소 2001.8.30. 99헌마496 결정"
• 6 "헌법재판소 1995.11.30. 92헌마44 결정"
• 7 三井誠, "일본 형사수속법" 법문사 2003
• 8 박노섭, "실체적 진실발견과 수사절차의 의미변화" 2 (2): 2004
• 9 서일교, "신형사소송법" 일한도서출판사 1954
• 10 신동운, "신형사소송법" 법문사 2014
• 11 성윤환, "수사와 내사의 구별 필요성에 관한 검토" 중앙법학회 15 (15): 121-158, 2013
• 12 독일법연구회, "독일 형사소송법" 사법발전재단 2018
• 13 "대법원 2000.6.15. 선고 99도1108 판결"
• 14 "대법원 1999.12.7. 선고 98도3329 판결"
• 15 "대법원 1979.4.24. 선고 75도2047 판결"
• 16 "대법원 1973.4.27. 선고 73도286 판결"
• 17 어빙코피, "논리학 입문" 2010
• 18 이은모, "기본강의 형사소송법" 박영사 2018
• 19 손영조, "검사의 수사지휘, 용어에 대한 연혁적 비교 연구" 경찰대학 17 (17): 35-58, 2017
• 20 Kern, "Strafverfahrensrecht" 1960
• 21 Henkel, "Strafverfahrenrecht" 1968
• 22 Loewe- Losenberg, "StPO Kommentar" 2004
• 23 Riess, "Prolegomena zu einer Gesamtreform des Strafverfahrensrechts"
• 24 Supples P., "Introduction to Logic" Courier Corporation 1999
• 25 Paul B. Weston, "Criminal Investigation" 1986
• 26 Michael J. Palmiotto, "Criminal Investigation" Nelson-Hall Publishers 1994