It has been 65 years since the [Criminal Procedure Act] was enacted, but since its enactment, the act has not deviated much from the system at the time of taking over the Japanese law. First, according to the current framework of the [Criminal Procedure Act], the post-trial procedure is defined in the General Provisions, and most subsequent provisions of the investigation procedure follow the provisions of the trial procedure, which do not match the order of the criminal procedure. Second, as a number of contents related to trial are stipulated in the Part I General Provisions and the investigation procedure is defined in the Part II Court of First Instance, it gives the impression that the investigation procedure is considered as an incidental or preliminary procedure of trial. Most important details that should be stipulated in the Chapter 3 Public Trial of the Part II are also defined in the General Provisions, which do not match the order of the criminal procedure. Third, it is difficult to conclude that the [Criminal Procedure Act]deals with the contents of the criminal procedure in a comprehensive and systematic manner, as the fundamental rights of citizens during the investigation procedure and some important matters that must be notified in accordance with the procedure are governed by the[Special Criminal Act], the [Regulation on Criminal Procedure], or the[Regulation on Administration of Prosecutory Cases], not by the[ Criminal Procedure Act]. Fourth, despite the need to change the investigation techniques or to introduce a new investigation system, it is difficult to find any change in the provisions of the [Criminal Procedure Act].
Due to the current system of the Criminal Procedure Act, it has been pointed out that the public including suspects, who are the parties to the criminal procedure, can not clearly understand the contents of the criminal procedure and although the [Criminal Procedure Act] is a 'procedural act' to guide the progress and procedure of criminal cases, legal experts such as practitioners and scholars are also having difficulty in grasping its meaning. Therefore, this study examines the problems of the system of the Korean Criminal Procedure Act by reviewing the structure of the current system of the [Criminal Procedure Act] and the arrangement order of the provisions. This study also aims to propose revision measures of the system of the Criminal Procedure Act, which match the order of the criminal procedure and guarantee the fundamental rights of citizens in comparison with foreign criminal procedure act systems.
The revision measures of the system of the Criminal Procedure Act can be considered in two forms. In the short term, there are measures to abolish provisions applicable mutatis mutandis and to change the order of the provisions. However, it is necessary to revise the system of the Criminal Procedure Act entirely in order to systematically arrange the legal provisions according to the order of the criminal procedure.
First, the purposes and basic principles of the Criminal Procedure Act and the rights of parties should be described in the Part I General Provisions as the forms of foreign legislative cases. The investigation procedure should be stipulated in the Part II and the trial procedure must be defined in the Part III, so that the system would be structured according to the order of the criminal procedure. Second, Part II should be described in the following order: basic principles of investigation - acceptance of case - investigation of evidence - discretionary investigation - arrest·detention - other physical infringements - search·seizure - inspection in accordance with the order of the investigation procedure. Third, the provisions on the investigation of evidence, such as complaints and accusations that are stipulated after interpersonal compulsory disposition, should be repositioned after the basic principles of investigation. Fourth, the provisions on discretionary investigation should be defined in the order of investigation progress by referring to the deion method of the [Regulation on Administration of Prosecutory Cases]. Fifth, the details related to arrest should be specified in the investigation phase, and then the detention procedure should be described. After that, the provisions on detention in the trial phase must be stipulated, but some provisions for investigation should be applied with necessary changes having been made. Sixth, although compulsory investigation involving physical infringements such as mandatory blood draw and DNA test is an in rem method, it should be described after interpersonal compulsory investigation as it is a privacy infringement area such as personal information of parties. Seventh, the provisions of the two concepts expressed as 'seizure and search' should be repositioned in accordance with the order of the investigation procedure by separating the concepts into 'search' and 'seizure'.