한국 검찰의 정치적 중립성 -풀리지 않는 숙제?-
The Political Neutrality of Public Prosecution Services in Korea -An Unattainable Goal?-

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서울대학교 법학연구소
법학, Vol.40 No3 pp.191-225
검찰이 바로서야 나라가 바로 선다국민적 불신정치권력의 도구파업유도 발언사건
Public prosecution services[PPS] in Korea are facing the serious crisis of trust. People feel that there exist the powerful untouchable free from normal anti-corruption activities. People feel injustice when they observe the criminal justice system seems to be politically biased. This paper is to review the reality of political biases of public prosecution services, and analyze their structural-institutional background. On the basis of such an analysis, some alternatives are suggested for achieving the more independent public prosecution from the political power and the strong control against the power-abusive crimes. My first concern lies at how the prosecutors are active and fair about controlling political corruption. Serious political corruption cases are often assigned to the Central Bureau of Investigation[CBI] under the Supreme Public Prosecutor's Office. CBI may be one of the most terrifying agencies, but their investigation practices have been often blamed for "target investigation" or "willful witch-hunting of opposition leaders". Such arbitrariness of targetting or hesitating caused the people's resentment and distrust. The aspiration for more independence and fairness has led to the strong argument for the establishment of Independent Counsel as in the United States. Another point where PPS are blamed for their political abuse of power is related to the Public Safety Bureau[PSB]. PSB had assumed the role of the legal justification of political repression against the dissents of the military-authoritarian regime. The boundary of PSB has ranged from espionage, foreigner-related affairs to student activities and labour disputes. National Security Law enabled PPS to intervene in not only anti-state activities but also civil liberty fields. With the advancement of civilian democracy, the importance of PSB has been decreasing, but the jurisdiction of PSB remains without change. In spite of growing objections to the influential power of PPS, there are few effective means for controlling the prosecutorial discretion. While the court has the authority to review the non-prosecution decision, the boundary of the judicial review has been permitted in very narrow cases. While a suspect may be reviewed in front of the judge in order to decide whether to issue a warrant of detention only after the revision of Korean Criminal Code in 1995, such a warrant-review procedure can be possible on application only. In case that the suspect is a high-ranking official or Congressman, the prosecutor should report the fact to the Minister of Justice and the General-Attorney, and get the approval from them, before the warrant of detention is applied to the judge. Hierarchical structure of the public prosecutor system limits the discretionary authority to investigation/prosecution by the on-the-job prosecutors. The politicized, monopolized, and overarching power of PPS is under strong pressures for change. Pressures from civil societies are steady and growing in recent years. New direction for the prosecution authority shall be to control the crimes of the powerful with the support of the people rather than to seek the guardian of the ruling political power. One can yet find few positive prospect for the reform of public prosecutor system in the near future.
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 40, Number 3 (2000)
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