새로운 형사사법 체계에서 중복수사의 구조적 문제점 고찰

초록

The amendments to the Criminal Procedure Act and the Prosecutors’ Office Act on February 4, 2020, which redistributed investigative authority between the police and the prosecution, together with the establishment of the Corruption Investigation Office for High-Ranking Officials(CIO) on January 21, 2021, brought fundamental changes to Korea’s criminal justice system. Subsequently, following the impeachment of the former president for declaring an unconstitutional state of emergency, the new administration proposed an additional phase of prosecutorial reform aimed at abolishing the Prosecutors’ Office and creating two new institutions: the Major Crimes Investigation Agency and the Prosecution Office. Under this new multi-agency structure, overlapping investigations are not incidental but structurally inevitable. Such overlap generates not only procedural inefficiency but also risks of protracted investigations and excessive competition among investigative bodies, potentially leading to overreach and abuse. Proposals to coordinate these investigations through an independent body such as the National Investigation Commission face practical and political obstacles, while granting transfer authority to special investigative agencies like the CIO risks institutionalizing arbitrariness and procedural confusion among horizontally related agencies. From the perspective of structural functional differentiation, the Prosecution Office should function as an institutional filter that ensures the legality and propriety of investigations, determines whether to indict, and coordinates overlapping cases. Ultimately, the resolution of overlapping investigations lies not in the formal separation of investigation and prosecution, but in achieving a constitutional balance between functional differentiation and interdependence among institutions—a dynamic equilibrium that sustains both procedural fairness and substantive justice.

키워드