군 형사사건 수사관할의 구조적 문제점과 새로운 수사기관을 통한 수사권 조정 방안

초록

This article examines the structural problems of investigative jurisdiction in military criminal cases under the recently reformed Korean criminal justice system, which is characterized by the coexistence of multiple investigative agencies. While the separation of investigative and prosecutorial powers aims to ensure checks and balances, it has also generated practical challenges such as overlapping investigations, jurisdictional conflicts, and procedural delays. Focusing on the 2021 amendments to the Military Court Act and the establishment of the Corruption Investigation Office for High-ranking Officials (CIO), the article argues that the expansion of external oversight has simultaneously intensified structural inconsistencies. In particular, the CIO’s limited jurisdiction over high-ranking military officers and its lack of prosecutorial authority lead to fragmented procedures and inefficiencies in addressing organizational crimes within the military. This article argues that the fundamental principle of criminal procedure should be understood as the realization of constitutional due process rather than the pursuit of substantive truth. In a multi-agency system, the key issue lies not in the formal allocation of powers but in the establishment of effective mechanisms of mutual control. As an alternative, the article proposes granting partial investigative jurisdiction over military criminal cases to the Serious Crimes Investigation Agency. With its broader investigative capacity, the agency can enhance both procedural accountability and the effectiveness of investigations. In conclusion, reform of the military criminal justice system should focus on securing due process through institutional checks and balances, rather than merely formal separation of powers.

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