[논문] 재정신청제도의 의의와 범위의 확대

• 영문명: Extension of the Object of Request for Ruling
• 발행기관: 한국형사법학회
• 저자명: 김태명(Kim Tae-Myeong)
• 간행물 정보: 『형사법연구』형사법연구 제21권, 333~362쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.01.21

영문 초록

Prosecution by public prosecutor and discretionary indictment as basic principles of public prosecution in the Criminal Procedure Act have a merit that can guarantee the elastic exercise of the prosecutorial power and the materialization of substantial justice. But they involve a fault that can impair the political neutrality of public prosecutors and give rise to the abuse of prosecutorial power. As a control measure against these principles, the request for ruling with the competent High Court of the person who lodge complaints or accusations on crimes was adopted by strong will of lawmakers of the Criminal Procedure Act in 1954. It applied to non-institution of prosecution of all crimes at that time, but the military government restricted its object to the crimes of public officials as referred to in Articles 123 through 125(abuse of authority, unlawful arrest and confinement, violence and cruel act) of the Criminal Act from the Amendment in 1973. The limitation of the object of request for ruling has an unconstitutionality as to infringe the constitutional rights of equality and of trial procedure statement of a victim of crimes as well as to weaken effectiveness of request for ruling. So it couldn't have fulfilled it's function as a checking installation about prosecutors monopoly and abuse of its power after 1973. Nowadays the desires of citizens for correcting prosecutor's disposition not to institute public prosecutions of crimes, such as the crimes in course of official duties of public officials are strong. The request for ruling as its controling system objectively guarantees the reasonableness of exercising the prosecutorial power. Moreover it subjectively aims at protecting fundamental rights of criminal victims and relators. For realization of the aim of the re quest for ruling, its object that was curtailed in 1973 should be widen to all crimes. The extension of its object will make the people's participation in criminal procedure possible and ensure the fairness of prosecutorial power. Consequently the object of the request for ruling should be extended to non-institution of all crimes.

목차

Ⅰ. 서설

Ⅱ. 재정신청제도의 의의

Ⅲ. 형사소송법 제260조 제1항의 문제점

Ⅳ. 결어

Abstract