수사절차에서의 헌법원칙에 관한 소고

• 영문명: The Study on the Constitutional Rules in the Procedure of Investigation
• 발행기관: 중앙대학교 법학연구원
• 저자명: 신주호(Shin, Joo-Ho)
• 간행물 정보: 『법학논문집』法學論文集 第39輯 第3號, 143~182쪽, 전체 40쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2015.12.18

영문 초록

The Both major basic concepts of the crime investigation is the actual truth finding and the basic human rights guarantee. In this way, the crime investigation pursues the two nasic concepts of the actual truth finding and the human rights guarantee. However, the analysis of our investigation practices and norms shows that more emphasis has been put on the actual truth finding and that the investigation efficiency has been overemphasized. However, the human rights guarantee is also the very important value in the two investigation concepts. The basic direction of investigation needs to be moved with the emphasis on the human rights guarantee in our society going toward the democratic society. The universality and importance of the human rights guarantee in the investigation procedures are the global flow and the contemporary current. In fact, the status of a suspect has been considered only as the object or subject of investigation in the current discussion on investigation. Namely, the major purpose of investigation is to collect the necessary evidences and secure the suspect's whereabouts to determine the prosecution for a certain criminal charge of the suspect. Hence, as the purposefulness to achieve the investigation purpose is strongly requested in the investigation procedures, the promptness and nondisclosure are required to prevent the escape or evidence destruction of the suspect. Moreover, the investigation agency's right of the compulsory measure is acknowledged, and the suspect has the obligation of accepting it. As a result, the suspect cannot have the status being comparable to that of the investigation agency and basically has the status of the object or subject of investigation. In view of the purposefulness and confidentiality of investigation, the status of the suspect in the investigation procedures doesn't strongly show the characteristics as the principal of the investigation procedures differently from the status of the defendant in the trial proceedings being the offense and defense procedures proceeded in front of a judge. In the discussion on the investigation of a suspect as the investigation object, it cannot be acceptable anymore in our constitutional order emphasizing the human rights guarantee. The realization of the justice through the actual truth finding in the criminal procedures is the natural request and duty of all constitutional states. Our constitution prepares the safety device of the binding constitutional principles for the protection of personal liberty in order to guarantee the personal liberty easily infringed in the criminal procedures. The constitutional rules mean the constitutionally binding rinciples to be observed when the national power including the legislator actually restricts the personal liberty. They are the principle of legality (Article 12 Provision 1 Statement 2 and the first part of Article 13 Provision 1), the principle of double jeopardy prevention (the latter part of Article 13 Provision 1), theprinciple of due process (Article 12 Provision 1), the warrant requirement (Article 12 Provision 3 and Article 16), the principle of the presumption of innocence (Article 27 Provision 4), the principle of limiting the evidential admissibility or probative power of confession (Article 12 Provision 7), and the principle of excluding the illegally acquired evidence. One of the reasons why the investigation conduct and practice not sincerelysecuring the human rights guarantee have been widespread so far is basically the biased and incorrect understanding of the basic concept of investigation.Therefore, our current cons titution also puts no less emphasis on the humanrights guarantee of a suspect than on the actual fact finding. The criminal procedures law should be prepared on the basis of the spirit of the constitution, and it is necessary to focus on the importance of the human rights guarantee furthermore in the investiga ti

목차

Ⅰ. 머리말

Ⅱ. 형벌불소급의 원칙

Ⅲ. 이중처벌금지의 원칙

Ⅳ. 적법절차의 원칙

Ⅴ. 영장주의

1. 의 의

2. 예 외

Ⅵ. 무죄추정의 원칙

1. 증거법상 무죄추정원칙

2. 인신구속의 제한 원리

3. 불이익 처우의 금지

4. 적용영역

Ⅶ. 자백의 증거능력 제한

1. 증거능력의 제한

2. 증명력의 제한

Ⅷ. 위법수집증거배제의 원칙

Ⅸ. 미란다 원칙

Ⅹ. 맺는말

키워드

수사절차 범죄수사 실체적 진실발견 인권보장 헌법원칙 procedure of investigation crime investigations actual truth finding human rights constitutional rules