한국의 형사사법체계 및 관리에 관한 연구(Ⅲ)

국문요약 ·····················································1
❘제1부❘ 수사구조 개혁의 필요성과 그 역사적 배경
∙ 탁희성 ·······························································13
❘제1장❘ 서 론 ························································15
제1절 연구 필요성 ·····················································17
1. 현행 수사구조에 대한 비판적 상황 인식의 재고 ······································17
2. 왜곡된 수사구조의 개선 ··············································19
3. 수사구조 개혁의 방향성 ·······················································19
제2절 연구목적과 연구방법 ·················································21
1. 연구목적 ·······························································21
2. 연구방법 ···························································22
❘제2장❘ 수사구조의 연원 ················································25
제1절 왜곡된 역사와 왜곡된 수사구조 ·······················································27
1. 식민지 사법체제내 수사구조 ·············································28
2. 미군정기 형사사법 체계의 혼돈속 수사구조 ·············································30
가. 검경관계의 혼란과 재편 ·························································30
나. 검찰조직에 대한 개혁논의 ·············································31
다. 강제수사에 대한 법적 규제 및 검찰 우위 수사구조로의 변화 ··················32
3. 대한민국 정부 수립 이후 수사구조 ··················································34
가. 제정 형사소송법상 수사구조 ·····················································34
나. 군사정권 하에서의 수사구조 ···················································35
제2절 민주화 이후 사법개혁 논의를 통한 수사구조 재정립 노력 ·············36
1. 1999년 사법개혁추진위원회 ·······················································36
가. 검찰의 정치적 중립성 확보방안 ················································37
나. 검찰권 견제방안 ··································································38
다. 인권보장을 위한 수사절차의 개선 ··········································39
라. 1999년 사개추위 개혁안의 성과 및 한계 ···················································39
2. 2005년 사법제도개혁추진위원회 ···············································40
가. 수사구조 개혁 관련 쟁점 ····························································41
나. 2005년 사개추위 개혁안의 성과 ············································41
3. 2010년 사법제도개혁특별위원회 ····················································42
가. 수사구조 개혁 관련 쟁점 ···················································43
나. 2010년 사개특위 개혁안의 성과 ··········································44
4. 2018년 사법개혁특별위원회 ················································45
5. 사법개혁을 통한 수사구조 개혁의 성과 및 한계 ······································45
가. 사법개혁을 통한 수사구조 개혁의 성과 ·······································45
나. 사법개혁에 있어서 수사구조 개혁의 한계 ·········································48
❘제2부❘ 수사구조의 진단 및 개혁논의의 현황 분석
∙ 탁희성 ·······························································51
❘제1장❘ 현행 수사구조의 문제와 한계 ···························53
제1절 법과 현실의 괴리 ·····················································55
제2절 수사권한 통제방식의 한계 ·························································56
1. 경찰 수사권 통제장치로서 검사의 수사지휘권의 의미와 한계 ················56
2. 검사 수사권에 대한 통제장치 결여 ····························································58
3. 수사에 대한 책임소재의 부재 ···············································59
4. 수사권한에 대한 민주적 통제방식의 흠결 ·················································61
제3절 수사사건에 대한 부당개입 배제의 한계 ···········································62
1. 정치적 중립이 불가능한 수사기관의 인사구조 ··········································62
2. 수사절차의 밀행성 관행 – 수사절차의 투명성 확보 미비 ·······················64
❘제2장❘ 수사구조의 입법적 변화 ····································65
제1절 수사구조의 입법적 변화 과정 ··························································67
제2절 수사의 주체 관련 입법안 발의 현황 ················································68
1. 제17대 국회 ·······················································68
2. 제18대 국회 ························································69
3. 제20대 국회 ·······························································71
제3절 검사의 기소권 제한 관련 입법안 발의 현황 ····································73
1. 제17대 국회 ····························································74
가. 재정신청제도의 개정 ····················································74
나. 기소법정주의의 도입 ·····················································76
다. 기소심사제도 도입 ·························································76
2. 제18대 국회 ·····························································79
가. 재정신청제도 개정 ···························································79
나. 기소심사제도 도입 ·····················································81
3. 제19대 국회 ··························································82
4. 제20대 국회 ·····················································84
제4절 검찰의 중립성 확보 관련 입법안 발의 현황 ····································85
1. 제17대 국회 ·······················································85
2. 제18대 국회 ·······················································87
3. 제19대 국회 ··························································89
가. 법무부장관의 검찰총장에 대한 지휘감독 제한 ···········································89
나. 대통령실 퇴직 후 검사재임용 제한 ···············································90
다. 검사 수사의 독립성 확보를 위한 이의제기권 보장 ····································91
4. 제20대 국회 ····························································92
가. 법무부장관의 검찰총장에 대한 지휘감독의 제한 ······································92
나. 검찰총장 및 검사 인사제도의 개선 ···············································93
다. 대통령실 퇴직후 검사 재임용 제한 ···········································94
라. 검사 수사의 독립성 확보를 위한 이의제기권 보장 ····································96
제4절 경찰 수사의 중립성 확보 및 자치경찰제 관련 입법안 발의 현황 ···96
1. 제17대 국회 ······························································98
2. 제18대 국회 ···························································98
3. 제19대 국회 ·························································99
4. 제20대 국회 ··························································99
가. 경찰수사의 독립성 및 공정성 확보 ·······································100
나. 경찰의 정치적 중립 확보 ············································101
제5절 수사구조 관련 입법적 변화의 경향 분석 ·······································102
1. 수사기관의 권한에 대한 통제 ···················································103
2. 수사기관의 정치적 중립성 확보 ····················································105
❘제3장❘ 수사구조 개혁을 위한 검찰과 경찰의 노력 ···· 107
제1절 경찰의 개혁 노력 ··················································109
1. 경찰의 수사주체성 확립 ················································109
가. 경찰수사권 현실화 ·······················································109
나. 책임수사체제 구축 ··························································110
2. 수사의 전문성 확보 ························································110
가. 수사인력의 전문화 ···························································111
나. 수사의 전문성 제고 ······················································111
3. 수사절차상 인권보호장치 확대 및 적법절차 준수 제고 ·························112
가. 수사절차상 인권보호장치 확대 ····················································112
나. 수사과정에서 적법절차 준수 제고 ···············································113
제2절 검찰의 개혁 노력 ······················································114
1. 검찰권의 공정한 행사를 위한 정치적 중립성 제고 ································114
가. 검찰총장 인사청문회 시행 ····················································115
나. 검찰인사위원회 심의기구화 ···················································116
다. 검사동일체 원칙의 완화 ······················································117
2. 기소권 남용 방지 노력 ·······················································118
가. 재정신청제도 확대 ························································118
나. 검찰시민위원회 도입 및 시행 ·······································119
3. 수사권한의 통제 ····························································120
가. 검찰 수사권의 축소 ························································120
나. 검찰수사심의위원회 도입 ··············································121
4. 수사절차상 피의자 방어권 보장 확대 ···········································121
가. 변호인 조력권 강화 ·························································121
나. 형사기록 공개 확대 ·························································122
❘제4장❘ 수사구조 개혁 관련 위원회 활동 ····················123
제1절 수사구조 개혁 관련 위원회의 권고안 ············································125
1. 대검찰청 검찰개혁위원회의 수사구조개혁 권고안 ··································125
가. 검찰 수사의 공정성 확보 ················································125
나. 검찰 수사의 중립성 확보방안 ·················································127
다. 검찰권 행사에 대한 공정성 및 투명성 확보방안 ·····································128
라. 검찰권의 공익적 행사방안 ·················································130
2. 법무검찰개혁위원회의 수사구조 개혁안 ·········································130
가. 검찰 권한의 통제방안 ···················································130
나. 검찰의 정치적 중립 확보방안 ·····················································133
다. 검찰권의 공익적 행사방안 ·······················································134
라. 수사과정에서 인권보장 강화 - 인권보호수사준칙 개정 ····························135
3. 경찰개혁위원회의 수사구조 개혁안 ················································136
가. 인권친화적 수사제도로의 개선 ························································136
나. 수사의 공정성 확보 ···························································137
다. 수사의 중립성 확보 ···················································139
라. 국제기준에 부합하는 경찰 체포･구속 최소화 및 유치인 인권보장 강화 · 140
마. 수사구조 개혁방안 ·····················································141
제2절 수사구조 개혁 관련 위원회 권고안 분석 ·······································144
1. 인권침해 및 권한남용에 대한 반성과 적극적인 구제 ····························145
2. 수사의 공정성 및 중립성을 저해하는 현행 수사구조의 한계에 대한
인식 ································································146
3. 수사구조 개혁의 방향성 정립 ···················································147
❘제5장❘ 수사구조 개혁 주요 쟁점 분석 ·······················149
제1절 검찰의 권한분산방안으로서 고위공직자범죄(비리)수사처 설치 ······151
1. 고위공직자범죄(비리)수사처(공수처) 도입 논의 ·······································151
가. 공수처 도입 논의의 배경 ···········································151
나. 공수처 도입 필요성 ·····················································151
2. 고위공직자범죄(비리)수사처 입법 경과 ···········································152
가. 제15대 국회 ······························································152
나. 제16대･제17대 국회 ·······················································154
다. 제18대 국회 ····························································157
라. 제19대 국회 ·····························································161
마. 제20대 국회 ·························································163
3. 공수처 도입에 대한 찬반 법리 검토 ··················································169
가. 공수처 도입 반대 논거 ·······················································169
나. 공수처 도입 찬성 논거 ·······················································173
4. 공수처법안의 주요 쟁점 분석 ···················································175
가. 공수처 권한의 한계 ························································175
나. 공수처의 정치 중립적 조직 설계 ··········································176
다. 공수처 직무의 독립성 확보의 전제조건 ··············································179
제2절 수사권과 기소권의 분리 ··················································182
1. 수사권과 기소권 분리에 관한 논의의 쟁점 ·············································182
2. 수사권 분리에 대한 관계 기관의 입장 ····················································183
가. 수사권 조정에 관한 검찰의 의견 ····················································183
나. 수사권 조정에 관한 경찰의 의견 ··················································188
3. 검･경수사권 조정합의문 ····················································193
가. 검찰과 경찰의 관계 재정립 ··················································193
나. 사법경찰관의 1차적 수사종결권 ·····················································194
다. 검사의 수사권 ···························································195
라. 검찰과 경찰의 수사경합시 해결기준 ··············································195
마. 자치경찰제 추진 ···················································195
바. 수사권 조정에 따른 경찰의 실천사항 ··············································196
4. 수사권 조정의 쟁점과 한계 ·······················································196
가. 수사권 조정에 있어서 검찰과 경찰간 견해의 차이 ··································196
나. 수사권 조정안의 쟁점 검토 ······················································199
제4절 경찰 수사권의 분산(견제)방안 ····················································205
1. 자치경찰제 도입 ··························································205
가. 경찰권 분산방안으로서 자치경찰제 도입 논의 ·········································205
나. 자치경찰제 도입 모델 ·····················································206
2. 사법경찰과 행정경찰의 분리 및 국가수사본부 설치 ······························214
가. 사법경찰과 행정경찰의 분리 필요성 ········································214
나. 사법경찰의 분리방안으로서 국가수사본부 설치 ·······································215
❘제3부❘ 독일과 영국의 수사구조 분석 ∙ 김유근·김대근 ···· 219
❘제1장❘ 독일의 수사구조 ∙ 김유근 ··································221
제1절 서론 ··························································223
제2절 독일 수사구조의 현황 ···········································228
1. 현행 독일 수사구조를 규정하는 현행법 규정들 ······································228
2. 독일의 수사구조 ···················································234
3. 검찰의 수사지휘권과 수사에 대한 총괄적인 책임 ··································237
4. 실무 ······················································240
제3절 독일에서의 수사구조의 발전과정 – 동시에 검찰과 경찰의
수사권조정 논의 ······························································243
1. 독일 검찰제도의 도입의 의의 ··················································243
2. 독일에서의 수사권조정 논의 ···············································246
가. 1877년 형사소송법의 입장 ···················································246
나. 1945년까지의 개정논의 ···························································247
다. 70년대의 논의 ·························································248
라. 2000년대의 개정논의 ··························································251
마. 그 밖의 개정논의 ························································253
제4절 검찰과 경찰의 관계 ···········································255
1. 검찰의 권한 ····························································255
가. 검찰과 경찰의 권한의 차이 ····················································255
나. 법원의 사전영장 또는 승인 없이 집행할 수 있는 검사의 처분 ·············260
2. 경찰의 권한 ···························································262
가. 위험방지임무 ··················································262
나. 범죄의 수사와 질서위반행위의 조사 ············································264
다. 위험방지기능과 형사소추기능의 충돌 ············································266
라. 경찰의 형사소추와 관련한 권한 ···········································268
3. 수사와 관련한 기타 제도 ············································270
가. 검찰수사관제도 ···················································271
나. 수사법관제도 ·····················································273
다. 법원보조인제도 ······················································276
제5절 수사기관에 대한 통제수단 ··········································277
1. 수사와 기소의 강제 ···················································277
가. 수사의 강제 ······················································277
나. 기소법정주의 ······················································278
2. 형사처벌 ····················································279
가. 개관 ·····················································281
나. 사법방해죄 – 독일 형법 제258a조(공무상 처벌방해) ······························282
다. 법왜곡죄 – 독일 형법 제339조(법왜곡) ·································283
제6절 소결 ······················································291
❘제2장❘ 영국의 수사구조 ∙ 김대근 ··································295
제1절 영국의 수사구조개혁 ··············································297
1. 영국 수사구조에 대한 비교법적 의의 ········································297
2. 영국 수사구조 개혁의 약사(略史) ············································299
가. 기소 권한을 둘러싼 영국 수사구조의 변화 과정 ·····································299
나. 영국 수사구조의 지향성 ················································302
제2절 영국 형사절차 개관 ···············································303
1. 영국 형사절차의 특수성 ···············································303
가. 영국 형사절차 모델의 전통 ···············································303
나. 사인소추제도 ························································305
2. 영국 형사절차에서 수사 및 기소의 개념 ················································306
가. 수사의 의의 및 이념 ·············································306
나. 수사의 구조 ··························································307
다. 기소 ·······························································308
라. 기소 여부 판단을 위한 심사 기준 ··············································310
제3절 수사기관 및 조직 ·············································312
1. 내무부(Home Office)가 관리하는 독립 조직 ········································312
가. 경찰 ···························································312
나. 국가범죄수사국(National Crime Agency) ··············································316
2. 법무장관(Attorney’s General: AG) 이 관리하는 독립 조직 ···············318
가. 중대범죄수사청(Serious Fraud Office: SFO) ········································318
나. 왕립 소추청(Crown Prosecutors Service: CPS) ··································319
제4절 기소의 구조와 조직: CPS를 중심으로 ··········································320
1. 설립 배경 ··················································320
2. CPS의 기능과 역할 ·············································321
3. CPS 의 소추 권한과 사인소추와의 관계 ·················································322
4. CPS의 수사권한 ······················································323
제5절 영국 경찰과 검찰의 권한 및 업무 관계 ········································323
1. 검찰(CPS)에 대한 경찰의 권한 및 책임 ··················································323
2. 경찰에 대한 검찰(CPS)의 의무와 책임 ····················································325
3. 검찰(CPS)과 경찰의 관계 ···················································327
제6절 영국 형사사법기관의 권한 행사에 대한 제도적 통제 수단 ···········330
1. 검찰의 기소결정권한 견제 장치 ·············································330
가. 법원의 개입에 따른 검찰권한 행사 중단 /공소유지 강행 ·······················330
나. 검찰의 불기소처분에 대한 사법적 심사를 통한 통제 ······························331
다. 피해자의 검토권(Victims’ Right to Review scheme: VRR) ··············333
라. 기소 동의를 요하는 사건(Consent cases) ···············································337
2. 수사기관 감찰기구 ·························································340
가. 왕립검찰감사관실(Her Majesty’s Crown Prosecution Service
Inspectorate: HMCPSI) ···················································340
나. 국립경찰및소방구급당국감사실(Her Majesty’s Inspectorate of
Constabulary and Fire & Rescue Services: HMICFRS) ·················342
다. 경찰 품행에 관한 독립 사무국(Independent Office for Police
Conduct: IOPC) ·····························································344
라. 형사사법 합동감사(Criminal Justice Joint Inspection: CJJI) ············345
제7절 영국 수사구조 개혁의 역사가 우리에게 주는 함의 ·······················346
❘제4부❘ 수사구조 개혁에 대한 인식 ∙ 박형민 ·················349
❘제1장❘ 조사 개요 ························································351
제1절 조사설계 ····························································353
1. 포커스 그룹 인터뷰 ··························································353
2. 국민 설문조사 ····························································354
제2절 주요 조사 항목 ······················································356
1. 포커스 그룹 인터뷰 조사 항목 ········································356
2. 국민 설문조사 조사 항목 ·························································357
❘제2장❘ 수사구조 개혁에 대한 전문가 인식 ················359
제1절 응답자 특성 ··························································361
제2절 현행 수사구조에 대한 인식 ···············································362
1. 검찰과 경찰의 관계 ·························································362
2. 수사 지휘 ····························································371
제3절 수사구조 개혁에 대한 인식 ······················································377
1. 수사권과 권력 집중 ···················································377
2. 수사권 조정에 대한 인식 ···············································381
3. 검찰에 대한 권력 견제 방안 ·················································386
가. 투명한 인사제도 ······················································386
나. 대검찰청을 통한 통제 ···················································388
다. 수사심의 위원회 ·····················································389
4. 경찰에 대한 권력 견제 방안 ···············································389
가. 검찰의 기소권을 통한 견제 ················································389
나. 수사본부 체제 등을 통한 수사의 독립성 강화 ·········································390
제4절 정부의 수사권 조정안에 대한 인식 ··········································390
1. 1차적 수사 종결권 ···············································390
가. 검사 의견 ···················································390
나. 경찰 입장 ··················································395
다. 변호사 입장 ··········································396
2. 영장 청구권 ············································397
3. 공수처 ·······················································399
❘제3장❘ 수사구조 개혁에 대한 국민인식 ······················401
제1절 응답자 특성 ······································403
제2절 범죄와 형사사법에 대한 일반적 인식 ········································404
1. 범죄로부터 안전한 사회 ········································404
2. 범죄 피해자들을 위한 활동 ····································405
3. 수사기관(검찰, 경찰) 및 수사관(검사, 경찰)의 활동 ······························406
4. 범죄피해 경험 ···············································407
제3절 수사기관에 대한 인식 ········································409
1. 범죄유형별 믿을만한 수사기관 ······································409
2. 피의자로서 조사 선호기관 ·········································410
3. 검찰과 경찰의 상대적 신뢰도 ·································412
4. 경찰 조사 경험 ·················································414
5. 검찰 조사 경험 ·····················································417
6. 경찰의 국민 신뢰를 위해 필요한 노력 ··································421
7. 검찰의 국민 신뢰를 위해 필요한 노력 ·······························421
제4절 수사 구조에 대한 의견 ········································423
1. 수사권 조정 인지 ·············································423
2. 수사권 조정 필요 여부 ··············································425
3. 수사 지휘권 ·················································430
4. 수사 종결권 ···············································433
5. 고위공직자범죄수사처(공수처) 신설 ····································436
❘제4장❘ 소 결 ·················································441
제1절 수사구조 개혁에 대한 전문가 인식 ···································443
1. 검사의 수사 지휘 ·················································443
2. 수사구조 개혁 ············································445
3. 정부의 수사권 조정안에 대한 인식 ······································446
제2절 수사구조 개혁에 대한 국민인식 ··········································447
1. 수사기관에 대한 인식 ············································447
2. 수사 구조에 대한 의견 ···········································448
제3절 수사구조 개혁에 대한 기대와 우려 ········································450
❘제5부❘ 입법정책적 개선방안 ∙ 탁희성 ····························453
❘제1장❘ 정책적 개선방안 ··············································455
제1절 수사구조 개혁의 방향 – 권한의 분산과 견제 ································457
1. 수사권의 분산과 견제 ·················································458
가. 검찰 수사권의 분산 ················································460
나. 경찰 수사권의 분산 – 자치경찰제 시행 ··························466
다. 검찰 수사권에 대한 견제 ········································469
라. 경찰 수사권에 대한 견제 ···············································471
2. 기소권의 견제 ·····················································475
가. 기소법정주의 도입 ··················································475
나. 재정신청제도의 전면 확대 ·········································476
다. 기소배심제도 도입 ···················································477
제2절 수사기관의 정치적 중립성 확보방안 ··············································478
1. 검찰의 정치적 중립성 ·····················································478
가. 인사권의 독립 ·····················································478
나. 법무부 파견 및 겸직 금지 또는 제한 ·········································482
다. 법무부장관의 수사지휘권 폐지 ·········································483
2. 경찰의 정치적 중립성 확보방안 - 사법경찰과 행정경찰의 분리- ··········484
3. 고위공직자 범죄 수사처(공수처)의 정치적 중립성 확보 방안 ···············485
제3절 인권중심의 수사구조 개혁 ·········································487
1. 수사절차상 인권보장 장치의 강화 ·········································488
가. 변호인의 피의자신문참여권의 확대 ········································488
나. 수사과정의 인권보장장치로서 영상녹화 의무화 ·······································492
2. 형사절차법상 인권보장 강화 ··············································496
가. 피의자신문조서의 증거능력 배제 ··········································496
나. 형사기록 열람등사 범위의 확대 ·······································498
3. 수사절차상 인권보호의 실효성 확보방안으로서 공공변호인제도의
도입 ······················································501
제4절 수사구조에 대한 근본적 인식의 전환 - 수사기관의 다양화 ···········505
❘제2장❘ 입법론적 제언 ·················································507
제1절 수사권의 분산과 견제를 위한 입법적 검토 ···································509
1. 수사의 주체로서 의무와 책임의 구체화 ···············································509
2. 수사통제에 관한 입법적 검토 ·········································511
가. 통제의 원칙 ·······················································511
나. 통제방법 ··························································512
3. 고위공직자범죄수사처 설치 관련 입법적 검토 ········································518
가. 헌법상 독립기관으로 상정하는 경우 ···········································518
나. 법률상 독립기관으로 상정하는 경우 ··············································519
4. 자치경찰제 도입에 관한 입법적 검토 ··············································521
제2절 수사기관의 정치적 중립성 확보를 위한 입법적 검토 ····················522
1. 검찰의 정치적 중립을 위한 입법적 검토 ·············································522
가. 인사제도의 개선 ····················································523
나. 법무부장관에 의한 지휘감독권한의 제한 ··············································524
다. 법무부 파견 및 겸직 제한 ············································525
2. 경찰의 정치적 중립을 위한 입법적 검토 ··············································525
제3절 인권중심의 수사구조를 위한 입법적 검토 ·····································527
1. 피의자 변호권 보장의 실질화 ··················································527
2. 수사과정에서 영상녹화의 의무화 ··············································528
3. 수사기관 작성 피의자신문조서의 증거능력 배제 ····································529
4. 공소제기전 수사기록 열람등사 규정의 명문화 ········································530
참고문헌 ···························································533
Abstract ··························································555
부록 ·····························································573
[부록 1] 검･경 수사권 조정 합의문 ·····················································573
[부록 2] 형사사법기관 및 수사구조개혁과 관련된 국민의식조사 ·········578