형사절차에서 사인소추제도(私人訴追制度)와 국가소추제도(國家訴追制度)에 관한 소고(小考) = A Study of System of Private Prosecution and Public Prosecution in Criminal Procedure

다국어 초록 (Multilingual Abstract)

The system of private prosecution is defined as a system under which a victim of a crime can directly file a lawsuit seeking to punish the culprit of the crime. In contrast, the system of public prosecution refers to a system under which the subject that has authority to seek judgment of court for a criminal case is limited to national institutions. Our country has adopted the system of public prosecution by enacting a Criminal Procedure Act that provides that “a public prosecution shall be instituted and executed by a prosecutor.” However, adopting the system of public prosecution does not necessarily mean that a victim’s participation is completely excluded. For example, a criminal victim may let an investigation agency to launch and conduct investigation, and a criminal victim may testify regarding the degree of harm and his/her opinion about punishment of the defendant during the criminal procedure. However, the victim may not participate in the criminal procedure as a party. A victim may neither bring a prosecution nor present an opinion about the weight of the defendant’s offense after indictment. Accordingly, the system of public prosecution will be criticized if a prosecutor does not voluntarily bring a prosecution, or if a prosecutor does not carefully listen to the criminal victim’s arguments and does not handle a case properly. In such situations, contentions to adopt the system of private prosecution will be raised. Contentions to adopt the system of private prosecution will surely be relented if prosecutors fully reflect the criminal victim’s position and ultimately take the head in protecting victims. Even though this article introduces the system of private prosecution in the United Kingdom, France, Germany, and the United States, this article does not draw up a conclusion to adopt the system of private prosecution. Rather, conclusion of this article is to suggest supplementing flaws of the public prosecution system by examining advantages of the system of private prosecution and by applying these advantages. Under current public prosecution system, a victim’s position is not fully reflected in investigation and judgment procedures. A victim is a directly attributed subject that is infringed of benefit and protection of the law. Therefore, a victim has an interest in the progress and outcome of his/her case as much as a defendant does. Nevertheless, a victim is somewhat alienated in criminal procedures. Now, victim’s position shall be restored. Although a victim is not a party in a criminal procedure, the victim shall endeavor to play an independent role because a criminal victim is the direct and primary victim of a crime, and criminal victim’s feelings of revenge and the recovery of damage of the victim are values that shall not be disregarded. Thus, a prosecutor shall listen to the victim’s testimonies regarding criminal charges “wholeheartedly.” Even for discovery of the truth which is the purpose of criminal procedure, listening to a victim’s testimonies is substantially crucial. In addition, a prosecutor shall act as an administrator of an investigation, not as a judge of a case. Furthermore, judges, prosecutors, and attorneys shall practice so that the victim’s right of statement is practically exercised. They shall enable a victim to autonomously state his/her opinion at a court, and to sustain a public prosecution in cooperation with a prosecutor. By doing so, a victim’s position that has been neglected in criminal procedure shall be recovered. Also, this would be an exemplar of desirable public prosecution system.