형사소송법의 개정방향 (Direction toward Reform of Criminal Procedure Act)

서지정보

· 발행기관 : 전북대학교 부설법학연구소
· 수록지 정보 : 법학연구 / 32권 / 109 ~ 182페이지
· 저자명 : 신양균

초록

1954년 제정된 형사소송법은 그 동안 여러 차례 걸친 개정에도 불구하고 이미 100년 넘게 유지되어 온 규문주의적 틀 속에 새로운 제도를 부분적으로 도입하는 데 그쳤다. 2007년 개정이 대폭개정을 통해 형사소송법의 틀에 큰 변화를 가져왔지만 여전히 많은 변화의 요구 가운데 있다. 형사법학회가 2010년 한해 동안 특별위원회를 구성해서 수사, 공판, 증거법, 법률체계 등 전 분야에 걸쳐 새로운 시대적 요청과 형사절차를 통한 법치국가 원리의 실현에 부응하는 방향에서 개정시안을 제시한 바 있는데, 이 글은 그 내용을 개관, 검토한 것이다.

영어초록

Criminal Procedure Act has a character as a concrete procedural rule not only to realize abstract criminal law, but also to realize a procedural rights, which the Constitutional Law tries to realize as fundamental human rights of freedom. More recently the act is being called upon to play a role as the bill of rights for the protection of the victim. Since the implementation of trial participating with the citizen.
Because our system of crimininal procedure keeps its elemental shape more than 50 years in spite of such a request for various roles. we need fundamental introspect into a new shape of criminal procedure. Only with maintaining a code meeting requirements about traditional principle of criminal procedure, based on accusation system, criminal procedure act is not able to fulful its role faithfully.
The Korean Criminal Law Association has founded ad hoc commission for reform of Criminal Procedure Act in 2010 and the commission held internal workshops several times and opened an academic conference. After such a mature consideration the commission drew a proposal draft for new criminal procedure.
At the stage of investigation is generally required institutionalization of inquire before booking, legal arrangement for the search for an identified cirminal,improvement of autopsy system, stipulation of legal ground for prohibition of departure from the country and enlargement of the right to councel during the examination of a suspect. In connection with compulsory measures againt person, should be considered ex post issuing warrant of arrest after emergency arrest,conceptional restriction of quasi-flagrant offender, introduction of bail for a pre trial suspect, inclusion of the suspended period duing to adjudication in calculating the detention period, abolition of prosecutor`s right of immediate appeal against court's decision to susepnd the execution of detention or revocate the detention etc. Meanwhile, in connection with compulsory measure against a thing, should be reviewed stipulation of legal ground for search for and seizure of digital evidence, more strict restriction of emergent search, seizure and inspection without ex ante warrant.
At the stage of trial should be improved the system of appeal against non-indictment disposition of prosecutor to the court, relating to the enlgargement of its scope, subject of implement of trial as complainant and also scope, stage and effective measure against refusal of discovery in discovery system should be reexamined. Additionally right of victim to be present in trial proceedings, to access to record of trial and introduction of participating in the trial as subject of victim should be considered carefully.
At the stage of appeal against judgement or special proceeding, restriction of first appeal of prosecutor against public-participation trial, improvement of new trial is being considered.
Finally in the field of evidence, the scope of exclusionary rule of illegal obtained evidence should be delimited clearly and admissibility of examination record and video recording as evidence need to be limited strictly. Also the system of code of criminal procedure should be reorganized.

참고자료

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