[논문] 수사절차에서의 개선입법론

• 영문명: The Reform Measure on the Legislation in the Investigation Procedure
• 발행기관: 한국형사법학회
• 저자명: 김영철(Kim Young-Cheol)
• 간행물 정보: 『형사법연구』형사법연구 제22권, 222~266쪽, 전체 45쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.02.02

영문 초록

Identifying the facts of issues and securing the human rights of concerned people in the investigation procedure are both major tasks that can't be ever abandoned or compromised. At the present day that has been about 50 years since the establishment and enforcement of the Criminal Procedure Code in Korea, we observe the accumulation of complaints that the provisions of positive law defining the investigation procedure are not adequate for the procedure to secure the human rights required in this era or the proper investigation is impeded because there are no legislative actions to promote the activity to identify the substantial facts, which is generally recognized in advanced countries. Accordingly, with the desires on revision of the current Criminal Procedure Code higher than any other moment in the history, the author began to exploit the reform measure on the legislation in the investigation procedure. We examine some important measures in the legislative reform measures. Firstly, an attorney's rights to participate in the suspect's questioning are the basic rights on the constitution, which comes from the rights of suspects to make an attorney help them. Thus, such rights should be defined on the provisions of the Criminal Procedure Code. However, the rights are limited by the serious conflicts of opinions. Therefore, the rights need to be defined in the context of harmonizing the self-defensive rights of suspects with the unique rights of attorneys. Secondly, the author is against the legal revision to enable the public prosecutors to extend the length of arrest. The present length of arrest doesn't hinder the decision whether to prosecute a case in consideration of the investigation experiences for a long time. If the length of arrest is extended, it is highly likely to infringe the human rights of suspects. Next, the system of coercive summons of witnesses and the legislation allowing the punishment on the witnesses who make the false statement are considered to be the inevitable tool for the identification of substantial facts. Thus, the author is for the introduction of the systems above to the extent that minimizes the concerns on the infringement of human rights in the positive law. The systems above are also approved in the US and Europe, the advanced countries in terms of human rights. Ultimately, in the discussion on the reform measures on the legislation in the investigation procedure, the measure encouraging the active participation of citizens in the investigation procedure needs to be also examined to enhance the measures to secure the human rights such as restriction of confession-oriented investigation and to supplement the weakening of the benefit and protection of law and social protection functions for the public.

목차

Ⅰ. 들어가는 말

Ⅱ. 변호인의 피의자신문참여권

Ⅲ. 검사 구속기간의 연장

Ⅳ. 구속전 피의자심문제도

Ⅴ. 참고인 출석강제제도

Ⅵ. 참고인의 허위진술 처벌

Ⅶ. 준항고제도

Ⅷ. 마무리하면서

Abstract