Pub Date : 2022-06-30DOI: 10.34222/kdps.2022.14.2.123
Sung-Ryong Kim
The “Partial Amendment to the Criminal Procedure Act” and the “Partial Amendment to the Prosecutor’s Office Act”, which were proposed in the name of all members of the majority party on April 15, 2022, were revised twice for 12 days, but they did not go through the actual deliberation process. It could be called a legislative riot, because the amentment bills passed the National Assembly 18 days later without any substantive deliveration oder material discussion. The amended laws were promulgated on May 9, 2022, and will come into effect on September 10, four months after the promulgation. Although the amendments to the alternatives to the first amendment bills were significantly reduced in content, the content contained in the first two partially amended bills was still not politically abolished. And the author thought, it should be recorded what laws were enacted in the National Assembly on the 3rd of the month. Therefore, this article examines the problems seen in the two revised bills submitted by the majority party, and discusses the contents and problems of the revised laws finally promulgated through twists and turns. After reviewing, the author described his belief in which is a more fundamental method of prosecutorial reform, and what is a desirable method of prosecutorial reform for the people.
{"title":"Problems of the abolition act of prosecutor's Right for Investigation and prosecution reform for the People","authors":"Sung-Ryong Kim","doi":"10.34222/kdps.2022.14.2.123","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.2.123","url":null,"abstract":"The “Partial Amendment to the Criminal Procedure Act” and the “Partial Amendment to the Prosecutor’s Office Act”, which were proposed in the name of all members of the majority party on April 15, 2022, were revised twice for 12 days, but they did not go through the actual deliberation process. It could be called a legislative riot, because the amentment bills passed the National Assembly 18 days later without any substantive deliveration oder material discussion. The amended laws were promulgated on May 9, 2022, and will come into effect on September 10, four months after the promulgation. Although the amendments to the alternatives to the first amendment bills were significantly reduced in content, the content contained in the first two partially amended bills was still not politically abolished. And the author thought, it should be recorded what laws were enacted in the National Assembly on the 3rd of the month. Therefore, this article examines the problems seen in the two revised bills submitted by the majority party, and discusses the contents and problems of the revised laws finally promulgated through twists and turns. After reviewing, the author described his belief in which is a more fundamental method of prosecutorial reform, and what is a desirable method of prosecutorial reform for the people.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128465698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-30DOI: 10.34222/kdps.2022.14.2.99
Yong Chul Park
In April and May 2022, the majority of the National Assembly was immersed in an attempt to completely deprive prosecutors of their right to investigate by unilaterally revising the relevant laws, the Criminal Procedure Act and the Prosecutors' Office Act. Although the law passed the National Assembly in early May did not fully fulfill its original purpose, the establishment of a new agency called the Serious Crime Investigation Agency has set the framework for abolishing all direct investigation rights granted to prosecutors. The organization called the Prosecutors’Office and the organization called the prosecutor have no choice but to play an essential and inevitable role in protecting human rights while committing certain degree of human rights violations. Also it should be noted that the prosecutor's investigation works as gate-keeping function for the police investigation. Two investigative agencies called the prosecution and the police shall coexist as organizations that form mutual cooperation and mutual checks. The National Assembly's recent attempt to pass the bill is ironically considered to have delayed or virtually abandoned the realization of the agenda of prosecution reform in a true sense, that is, having an independent investigative agency from political power for a long time ago.
{"title":"Considering the Concordance of the Constitution and the Laws with regards to the Prosecutor's Authority to Investigate","authors":"Yong Chul Park","doi":"10.34222/kdps.2022.14.2.99","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.2.99","url":null,"abstract":"In April and May 2022, the majority of the National Assembly was immersed in an attempt to completely deprive prosecutors of their right to investigate by unilaterally revising the relevant laws, the Criminal Procedure Act and the Prosecutors' Office Act. Although the law passed the National Assembly in early May did not fully fulfill its original purpose, the establishment of a new agency called the Serious Crime Investigation Agency has set the framework for abolishing all direct investigation rights granted to prosecutors. The organization called the Prosecutors’Office and the organization called the prosecutor have no choice but to play an essential and inevitable role in protecting human rights while committing certain degree of human rights violations. Also it should be noted that the prosecutor's investigation works as gate-keeping function for the police investigation. Two investigative agencies called the prosecution and the police shall coexist as organizations that form mutual cooperation and mutual checks. The National Assembly's recent attempt to pass the bill is ironically considered to have delayed or virtually abandoned the realization of the agenda of prosecution reform in a true sense, that is, having an independent investigative agency from political power for a long time ago.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129328490","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-30DOI: 10.34222/kdps.2022.14.2.212
H. Kim
As most historical research shows, our criminal trial system is a mixture of two different legal traditions: Continental Civil-Law and Common-Law ideas. We have imported the principle, from the experience of continental legal systems, that fact finders in a criminal trial should have a chance of examining the witnesses directly in an open court. Also, the rule against hearsay has been successfully imbedded to our legal system in the course of studying the Japanese criminal procedure law which was mostly influenced by the propositions of American scholars, such as Wigmore and practitioners. Sometimes two different ideas conflict in our everyday criminal trial. The Continental system insists upon us that a trial judge should play his role as a fact-finder and engage actively in finding the truth, while the American idea recommends that he is to be an umpire of a criminal trial, not an playing actor. Since these different attitudes and ideas are reflected in various articles of the Korean Criminal Procedure Law, the Korean legal circle has had a lot of problems in understanding and interpreting them properly. Our trials are full of documentary evidence prepared by the Police and Prosecutors, and, at the same time, the Common-Law tradition requires that the truth should be re-constructed from findings of active witness examination done in an open court as is the case of the English jury trial. The situation being so, we need to carefully read again the meanings of our criminal trial code, and try to reorganize our court system for better reflecting the Common-Law and Civil-Law recommendations.
{"title":"For the Procedural Amelioration of the Criminal Trial","authors":"H. Kim","doi":"10.34222/kdps.2022.14.2.212","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.2.212","url":null,"abstract":"As most historical research shows, our criminal trial system is a mixture of two different legal traditions: Continental Civil-Law and Common-Law ideas. We have imported the principle, from the experience of continental legal systems, that fact finders in a criminal trial should have a chance of examining the witnesses directly in an open court. Also, the rule against hearsay has been successfully imbedded to our legal system in the course of studying the Japanese criminal procedure law which was mostly influenced by the propositions of American scholars, such as Wigmore and practitioners. Sometimes two different ideas conflict in our everyday criminal trial. The Continental system insists upon us that a trial judge should play his role as a fact-finder and engage actively in finding the truth, while the American idea recommends that he is to be an umpire of a criminal trial, not an playing actor. Since these different attitudes and ideas are reflected in various articles of the Korean Criminal Procedure Law, the Korean legal circle has had a lot of problems in understanding and interpreting them properly. Our trials are full of documentary evidence prepared by the Police and Prosecutors, and, at the same time, the Common-Law tradition requires that the truth should be re-constructed from findings of active witness examination done in an open court as is the case of the English jury trial. The situation being so, we need to carefully read again the meanings of our criminal trial code, and try to reorganize our court system for better reflecting the Common-Law and Civil-Law recommendations.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125311377","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-30DOI: 10.34222/kdps.2022.14.2.255
Byung-Soo Kim
In the case of sexual violence crimes stipulated in the 'Sexual Violence Punishment Act', in the case of a victim under the age of 19 recorded in a video, when the authenticity of the establishment is recognized by a court statement of a trusted person or a person who was a witness during the investigation process. It is related to the special provision that limits the defendant's right to cross-examine the original affidavit by stipulating that evidence can be recognized even in the present case. According to the Constitutional Court, preventing secondary harm to minor victims is an important value that cannot be given up in forming criminal procedures for sexual violence crimes. Even though a harmonious method can be assumed, the provision for judgment excessively restricts the defendant's right of defense by practically excluding the defendant's right to cross-examine the original speaker in the statement of the minor victim included in the video. Balance of legal interests, Violation of the principle of excessive prohibition, such as the minimum of infringement, infringes the right of the accused to receive a fair trial. The current law provides various witness support systems that can prevent and guarantee the defendant's right to cross-examination in consideration of the various secondary damages that can occur to minor victims during the testimony process. In the case of witness interrogation of minor victims of sexual violence through sexual assault, there is no choice but to appear in court again and make a statement, so the effect of reducing secondary damage caused by repeated statements will not be significant. As a way to reduce the secondary damage through direct face-to-face, we intend to review the video trial by means of a video relay as an improvement method. In the case of the witness interrogation system by means of a video relay system, the victim does not have to attend the courtroom or face the accused in person because the victim attends the testimony room outside the court and testifies through the relay device. However, if reference is made to the standards that can limit the defendant's right to face through the Craig Test on the remote witness interrogation procedure in the United States, it is possible to operate witness interrogation using video and other relay devices without infringing direct attention and the defendant's right to face. will be. In other words, if the right to face the accused and the right to cross-examination cannot be fully guaranteed, a significant public interest must exist. In addition, the credibility of the testimony must be secured in such a way that the underage victim can take an oath, cross-examination is possible, and the form of testimony can be confirmed in front of a judge, jury, and the accused.
{"title":"Protection of Child Victims of Sexual Violence and Guarantee of the Right to Cross-examination of the Accused through Video trial: Constitutional Court 2021.12.23., 2018Heonba 524 decision","authors":"Byung-Soo Kim","doi":"10.34222/kdps.2022.14.2.255","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.2.255","url":null,"abstract":"In the case of sexual violence crimes stipulated in the 'Sexual Violence Punishment Act', in the case of a victim under the age of 19 recorded in a video, when the authenticity of the establishment is recognized by a court statement of a trusted person or a person who was a witness during the investigation process. It is related to the special provision that limits the defendant's right to cross-examine the original affidavit by stipulating that evidence can be recognized even in the present case. According to the Constitutional Court, preventing secondary harm to minor victims is an important value that cannot be given up in forming criminal procedures for sexual violence crimes. Even though a harmonious method can be assumed, the provision for judgment excessively restricts the defendant's right of defense by practically excluding the defendant's right to cross-examine the original speaker in the statement of the minor victim included in the video. Balance of legal interests, Violation of the principle of excessive prohibition, such as the minimum of infringement, infringes the right of the accused to receive a fair trial. The current law provides various witness support systems that can prevent and guarantee the defendant's right to cross-examination in consideration of the various secondary damages that can occur to minor victims during the testimony process. In the case of witness interrogation of minor victims of sexual violence through sexual assault, there is no choice but to appear in court again and make a statement, so the effect of reducing secondary damage caused by repeated statements will not be significant. As a way to reduce the secondary damage through direct face-to-face, we intend to review the video trial by means of a video relay as an improvement method. In the case of the witness interrogation system by means of a video relay system, the victim does not have to attend the courtroom or face the accused in person because the victim attends the testimony room outside the court and testifies through the relay device. However, if reference is made to the standards that can limit the defendant's right to face through the Craig Test on the remote witness interrogation procedure in the United States, it is possible to operate witness interrogation using video and other relay devices without infringing direct attention and the defendant's right to face. will be. In other words, if the right to face the accused and the right to cross-examination cannot be fully guaranteed, a significant public interest must exist. In addition, the credibility of the testimony must be secured in such a way that the underage victim can take an oath, cross-examination is possible, and the form of testimony can be confirmed in front of a judge, jury, and the accused.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128576511","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-30DOI: 10.34222/kdps.2022.14.2.35
C. Lee
Investigation should not have any meaning on its own, apart from the prosecuting authority’s decision. This is because these judgments can not be properly made unless the legal and normative viewpoints of the prosecuting authority are applied. There is no purpose of investigation itself, and there should not be because there is no reasonable grounds in terms of protecting constitutional rights and human rights that the independence of the investigative authority should be guaranteed. Therefore, if the purpose of the investigation is to evaluate the possibility of proving guilt and to decide whether to initiate a prosecution, and the validity of the decision is ultimately evaluated by the court's decision or judgment through the trial process. the authority and responsibility of the investigation should belong to the prosecuting authority according to the principle of purposiveness and the principle of professionalism. If the organizational structure and authority are set so that the incentives and decision-making of the members in the organization are contradictory to each other in the areas with the same purpose and function, serious disharmony and burden will occur within the system. Whether the legal nature of the investigation of a specific case is judicial or administrative depends on the philosophical and institutional perspectives with which how important and realistically achievable the culture of the relevant legal system regards the fairness of the investigation procedure. The ideal investigative agency for which our Constitution and the Criminal Procedure Act aims should only discover the actual truth and implement judicial justice, while maintaining objectivity and neutrality in criminal procedures. Investigation should not be used to achieve administrative purposes, but are aimed only at finding the truth and the judicial justice. To achieve this, the investigation should not be part of the administration, but should be part of a judicial or quasi-judicial power independent of the administration in our criminal legal system. If real-world prosecutors fail to realize quasi-judicial independence in spite of these legal ideals and institutions for achieving them, a device that can guarantee independence and objectivity of them should be developed in order to properly implement this ideals. The investigative authority should not be monopolized by administrative agencies that are bound by the principles of administrative authority and purposiveness. Most of the existing problems raised with respect to the prosecutor's concentration of power should have been addressed with the standpoint of strengthening the independence and neutrality of the prosecution service and refraining from unnecessary direct investigations, thereby solidifying their identity as a quasi-judicial institution. In addition, it should have been approached by strengthening the objective measures of checks and independent inspection procedure in the decision-making proce
{"title":"A Critical Review on the Separation Theory of Investigation and Prosecution: Focusing on comparative legal perspective","authors":"C. Lee","doi":"10.34222/kdps.2022.14.2.35","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.2.35","url":null,"abstract":"Investigation should not have any meaning on its own, apart from the prosecuting authority’s decision. This is because these judgments can not be properly made unless the legal and normative viewpoints of the prosecuting authority are applied. There is no purpose of investigation itself, and there should not be because there is no reasonable grounds in terms of protecting constitutional rights and human rights that the independence of the investigative authority should be guaranteed. Therefore, if the purpose of the investigation is to evaluate the possibility of proving guilt and to decide whether to initiate a prosecution, and the validity of the decision is ultimately evaluated by the court's decision or judgment through the trial process. the authority and responsibility of the investigation should belong to the prosecuting authority according to the principle of purposiveness and the principle of professionalism. If the organizational structure and authority are set so that the incentives and decision-making of the members in the organization are contradictory to each other in the areas with the same purpose and function, serious disharmony and burden will occur within the system. Whether the legal nature of the investigation of a specific case is judicial or administrative depends on the philosophical and institutional perspectives with which how important and realistically achievable the culture of the relevant legal system regards the fairness of the investigation procedure. The ideal investigative agency for which our Constitution and the Criminal Procedure Act aims should only discover the actual truth and implement judicial justice, while maintaining objectivity and neutrality in criminal procedures. Investigation should not be used to achieve administrative purposes, but are aimed only at finding the truth and the judicial justice. To achieve this, the investigation should not be part of the administration, but should be part of a judicial or quasi-judicial power independent of the administration in our criminal legal system. If real-world prosecutors fail to realize quasi-judicial independence in spite of these legal ideals and institutions for achieving them, a device that can guarantee independence and objectivity of them should be developed in order to properly implement this ideals. The investigative authority should not be monopolized by administrative agencies that are bound by the principles of administrative authority and purposiveness. Most of the existing problems raised with respect to the prosecutor's concentration of power should have been addressed with the standpoint of strengthening the independence and neutrality of the prosecution service and refraining from unnecessary direct investigations, thereby solidifying their identity as a quasi-judicial institution. In addition, it should have been approached by strengthening the objective measures of checks and independent inspection procedure in the decision-making proce","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117043600","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-30DOI: 10.34222/kdps.2022.14.2.213
C. Lee
The Constitutional Court decided the targeted clause unconstitutional, which had allowed the admissibility of the video recording containing pretrial statement of the minor victims of sexual violence crimes without their direct testimony in the trial court. According to the Court, this is mainly because there is a risk of hindering the discovery of the truth, if the defendant's right to cross-examination is not guaranteed and even though harmonious methods that can prevent secondary damages of the victims already exist, depriving the defendant's opportunity to cross-examine not utilizing those methods violate the constitutional principle of prohibition of excessive restriction and violate the right to a fair trial guaranteed by Article 27 of the Act. However, the decision contradicts the Constitution and the criminal procedure law system, and the right to cross-examination itself cannot be regarded as an independent fundamental right of the Constitution. Guaranteeing the defendant's right to cross-examination of minor victims of sexual violence crimes without considering the fairness of the specific trial can not be justified in terms of human rights, as it can impair the truth of case and impose secondary harms on minor victims. These problems cannot be solved with the so-called harmonious methods, and the decision cannot be justified in terms of the point of view of comparative law. The admissibility of the video recording where the right to cross-examination is not guaranteed should be allowed to be ultimately decided by the court according to the judgment on whether or not the fairness of a specific trial has been violated, and that is a more appropriate and systematic way.
{"title":"The right to cross-examination in view of Constitution, Human rights and Comparative law","authors":"C. Lee","doi":"10.34222/kdps.2022.14.2.213","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.2.213","url":null,"abstract":"The Constitutional Court decided the targeted clause unconstitutional, which had allowed the admissibility of the video recording containing pretrial statement of the minor victims of sexual violence crimes without their direct testimony in the trial court. According to the Court, this is mainly because there is a risk of hindering the discovery of the truth, if the defendant's right to cross-examination is not guaranteed and even though harmonious methods that can prevent secondary damages of the victims already exist, depriving the defendant's opportunity to cross-examine not utilizing those methods violate the constitutional principle of prohibition of excessive restriction and violate the right to a fair trial guaranteed by Article 27 of the Act. However, the decision contradicts the Constitution and the criminal procedure law system, and the right to cross-examination itself cannot be regarded as an independent fundamental right of the Constitution. Guaranteeing the defendant's right to cross-examination of minor victims of sexual violence crimes without considering the fairness of the specific trial can not be justified in terms of human rights, as it can impair the truth of case and impose secondary harms on minor victims. These problems cannot be solved with the so-called harmonious methods, and the decision cannot be justified in terms of the point of view of comparative law. The admissibility of the video recording where the right to cross-examination is not guaranteed should be allowed to be ultimately decided by the court according to the judgment on whether or not the fairness of a specific trial has been violated, and that is a more appropriate and systematic way.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133420598","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-30DOI: 10.34222/kdps.2022.14.2.167
Kihun Lee
For the first time in its history, the Supreme Court handed down a decision recognizing the abuse of prosecutorial power. This case affirmed the holding of the original court’s decision of dismissing a criminal complaint for abuse of prosecutorial right. The Court held that the prosecutor abused its right of prosecution by arbitrarily exercising the same and that the defendant clearly suffered a substantial harm as a consequence. The Court determined that, in such a situation, there was a grave deviation from the standard governing the discretionary right of prosecution. This research attempts to review the elements needed to establish a case of prosecutorial abuse as identified by the Court and to determine whether the ultimate holding approving the dismissal of the criminal complaint is legally sound, by discussing and reviewing prior researches and discussions by legal scholars. The paper initially looks at the status of a prosecutor under the criminal procedure law. It also briefly reviews the nature and the significance of the Right of Prosecution. With respect to the abuse issue, the paper will evaluate the soundness of the case at issue, limiting the discussion to the elements articulated by the Court and the legal effects thereto. The paper then suggests the following. In order to have a reasonable check on the abuse of prosecutorial right by the prosecutors, we need to introduce the system of Compulsory Prosecution. However, rather than adopt the system all at once for every crime, the paper proposes that we initially introduce the system for the crimes covered by the prosecutorial jurisdiction of the High-ranking Officials Criminal Investigation Office. And then, after analyzing the results of the cases from the High-ranking Officials Criminal Investigation Office, we shall consider introducing the system for all the crimes.
{"title":"A Critical Review on the Case that Has Acknowledged Abuse of Prosecutorial Right","authors":"Kihun Lee","doi":"10.34222/kdps.2022.14.2.167","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.2.167","url":null,"abstract":"For the first time in its history, the Supreme Court handed down a decision recognizing the abuse of prosecutorial power. This case affirmed the holding of the original court’s decision of dismissing a criminal complaint for abuse of prosecutorial right. The Court held that the prosecutor abused its right of prosecution by arbitrarily exercising the same and that the defendant clearly suffered a substantial harm as a consequence. The Court determined that, in such a situation, there was a grave deviation from the standard governing the discretionary right of prosecution. This research attempts to review the elements needed to establish a case of prosecutorial abuse as identified by the Court and to determine whether the ultimate holding approving the dismissal of the criminal complaint is legally sound, by discussing and reviewing prior researches and discussions by legal scholars. The paper initially looks at the status of a prosecutor under the criminal procedure law. It also briefly reviews the nature and the significance of the Right of Prosecution. With respect to the abuse issue, the paper will evaluate the soundness of the case at issue, limiting the discussion to the elements articulated by the Court and the legal effects thereto. The paper then suggests the following. In order to have a reasonable check on the abuse of prosecutorial right by the prosecutors, we need to introduce the system of Compulsory Prosecution. However, rather than adopt the system all at once for every crime, the paper proposes that we initially introduce the system for the crimes covered by the prosecutorial jurisdiction of the High-ranking Officials Criminal Investigation Office. And then, after analyzing the results of the cases from the High-ranking Officials Criminal Investigation Office, we shall consider introducing the system for all the crimes.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"101 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127118702","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-30DOI: 10.34222/kdps.2022.14.2.1
Oung-Seok Jeong
{"title":"A Analysis of the revised Criminal Procedure Act and the revised Public Prosecutor's Office Act","authors":"Oung-Seok Jeong","doi":"10.34222/kdps.2022.14.2.1","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.2.1","url":null,"abstract":"<jats:p />","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124749286","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-31DOI: 10.34222/kdps.2022.14.1.73
S. Kang
{"title":"Evidence obtained through administrative investigation and exclusionary rul","authors":"S. Kang","doi":"10.34222/kdps.2022.14.1.73","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.1.73","url":null,"abstract":"","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121974639","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-03-31DOI: 10.34222/kdps.2022.14.1.103
K. Lee
{"title":"Criminal Law Problems and Improvement Plans in the Administrative Investigation System in the Fair Trade Area","authors":"K. Lee","doi":"10.34222/kdps.2022.14.1.103","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.1.103","url":null,"abstract":"","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128356980","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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