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KICJ Research Reports

Changes in the Criminal Justice System in the Post-Corona Era(Ⅰ) - Changes in Trials and Investigations during the Pandemic and Adaptation to New Trend 사진
Changes in the Criminal Justice System in the Post-Corona Era(Ⅰ) - Changes in Trials and Investigations during the Pandemic and Adaptation to New Trend

Abstract

In general, the prefix post- has both the temporal meaning of '-after' and the liberating meaning of 'escape'. In this study, the concept of post-corona covers ①the temporal meaning concerning the complete end of COVID-19, ②the quantitative changes caused by the prolonged COVID-19, ③the qualitative changes caused by the outbreak of new infectious diseases like the Black Death of the Middle Ages ④the situation in which non-face-to-face contact gradually grows into a norm as face to face contact as a major cause of the spread of infectious is avoided. Under the major theme of "Changes in the Criminal Justice System in the Post-Corona Era," this study is diagnosing the impact of COVID-19 on our criminal justice and legal policy, starting with "Changes in Trials and Investigations during the Pandemic and Adaptation to New Trend" (2021), including "Changes in Correction and Probation during the Pandemic and Adaptation to New Trend" (2022) and "Changes in Immigration Management during the Pandemic and Adaptation to New Trend" (2023).

In this study, two main research methods are used, one of which is a target group interview (FGI) through empirical recognition. A total of 28 police officers, including 10 prosecutors, 7 courts, 5 lawyers, with various experiences in investigation and trial practice and recent experiences with COVID-19, were surveyed using targeted group interviews and individual phone interviews. In the target group interview, participants freely shared their opinions on a given topic. Also, using comparative analysis methods, related systems of major countries that introduced and implemented non-face-to-face, electronic, and remoting in the era of COVID-19 were found and reviewed. Unlike previous studies that outline and introduce comparative laws, this study was able to focus on timeliness in that it introduced issues of investigation and trial in major countries on the related issues.

The first sub-topic is about the significance of post-corona and its impact on the criminal justice system. At the opening, the trend of crimes during post-corona was analyzed. Previous studies have shown that the latest data can be reflected relatively quickly as they calculate the date and type of crime using 112 report data but there is a problem that it can cause underreporting in that it does not include direct or recognized cases while it can also cause overreporting in that it might include misconceptions or duplicate reports. Therefore, in this study, based on each crime statistics table collected and computerized by investigative agencies across the country while investigating criminal cases, it was reviewed whether actual criminal cases differ before and after COVID-19.

In the first quarter of 2020, that is, in the early days of the COVID-19 outbreak, the total number of crimes, including some detailed types of crimes such as violent crimes, violent crimes, and traffic crimes, decreased significantly compared to the same quarter last year. This decline can be seen as a result of some influence on the decrease in face-to-face contact due to social distancing. However, in the case of property crimes, it increased compared to the same quarter last year in the first to third quarters of 2020, that is, the beginning of the Corona outbreak, but it decreased compared to the previous year after the fourth quarter of 2020.

As the post-Corona era begins, as the changes in the criminal justice system caused by COVID-19, movements to conduct non-face-to-face, electronic, and remoting are in full swing in investigation and trial practice to minimize pandemic. Face-to-face investigations and trial practices were often suspended or delayed to prevent contact with confirmed patients and the spread of infectious diseases. The concept of non-face-to-face means the collective 'efforts' for non-face-to-face, and electronification aims to promote non-face-to-face through means such as electronic s. Remoteization is an effort to overcome the distance between time and space, allowing 'face-to-face situations' to be 'facing in a non-face-to-face manner', depending on the means of electronification.

These changes are easily confirmed in the electronic legislative initiatives, the progress of the plenary session through televideo, electronic litigation in the judicial domain, and electronic inspection in the enforcement domain. In addition, various systems such as a remote video interview system in the correctional area to prevent the spread of COVID-19 have been introduced and implemented.

The second sub-topic dealt with the issue of investigative procedures in the post-Corona era. In this study, it was found that there are several problems in the existing discussions, current laws, and current practices related to non-face-to-face or electronicizing investigation procedures. One of them is the issue of interpersonal investigation procedures during the pandemic as the provisions of the current Criminal Procedure Act and related laws do not reflect the current situation in which information and communication network technology and infrastructure are highly developed. The current act and laws presuppose that the parties physically appear in places such as courts and investigative agencies. In addition, there are still analog regulations in the field of criminal justice, such as issuing and presenting paper s rather than electronic s, or requiring a signature seal on a warrant. It is necessary to examine how the current legal text needs to be replaced to introduce non-face-to-face or electronification of procedures.

One of the biggest criticisms of introducing non-face-to-face in criminal proceedings is that remote investigations of suspects through non-face-to-face technology may lose the opportunity to observe non-statements such as facial expressions or gestures, but objections may arise. A refined non-face-to-face remote system should be established to confirm the credibility of statements and observe non-statemental expressions.

The problem with conducting the investigation process remotely and non-face-to-face is there is a risk that the investigated suspect will destroy evidence or flee because it is difficult to secure immediate recruits. To resolve it, guidelines for the types of crimes that can be investigated non-face-to-face and the stages of the investigation that can carry out non-face-to-face or remote investigation procedures should be established.

To promote non-face-to-face, it is also necessary to review the current record-centeredness. Although the Korean Criminal Procedure Act declares trial-centeredness, trials have been mainly conducted based on records to prevent the inefficient process. Furthermore, video recordings introduced to ensure due process and transparency in the investigation process are not recognized as principal evidence. However, the admissibility of evidence can be rather strengthened on the premise that video recordings have not been forged or altered. In the case of investigations using non-face-to-face or remote technology, alternatives such as submitting recordings or investigation reports summarizing and organizing video recordings can be considered.

The issue of identification may be raised as an obstacle to the non-face-to-face conversation. In the case of non-face-to-face interrogation of suspects or witnesses in remote areas, it can be a problem to accurately confirm the identification. Therefore, a complementary technology should be developed and introduced to verify the identification of the person accessing through non-face-to-face video technology.

There are also issues to review regarding the objective investigation procedure. One of them is the possibility of non-face-to-face contact at the stage of requesting, issuing, and executing warrants. It is difficult for the current Criminal Procedure Act to be carried out non-face-to-face through those stages. As the court’s leading cases that the 'original' of the warrant should be 'directly presented' is unreasonable in the pandemic situation, it can be considered indirectly presenting the warrant or implementing it in an electronic form to improve inefficiency.

It is also necessary to consider the issue of the right to participate in the seizure and search stage. The precedent guarantees the right to participate so that stored information is related to the seizure and search of electronic records. In the process of confiscating large-scale electronic information and searching for related information, it is necessary to have alternatives such as allowing confiscated persons or lawyers to participate and check data through non-face-to-face and remote technologies.

The third sub-topic was the issue of trial procedures in the post-Corona era, Before criminal justice experienced a pandemic, remote trials using information technology tended to be discussed as an auxiliary means for trials in court trials, but the rapid spread of COVID-19 in 2020 raised the need for full-scale of non-face-to-face. In the early days of the spread of COVID-19, the trial date was postponed, but criminal cases with restrictions on the Defendant's arrest period had no choice but to proceed with the procedure despite the risk of COVID-19 infection. Accordingly, the progress of remote trial procedures in other countries was examined.

In the United States before COVID-19, the issue of "Defendant's right to face witnesses in the case of remote visual trial" guaranteed by Article 6 of the Amendment was raised. Although the remote visual trial was introduced restrictively through precedents, general regulations for the remote visual trial were introduced to utilize video trials in criminal trials to cope with the COVID-19 incident after the outbreak of it. The UK also enacted the Coronavirus Act 2020 on March 25, 2020, to cope with the COVID-19 pandemic, allowing trials using video links if there was a risk of infection among those involved in the trial. In China, the so-called "Internet Court" has been established since 2017, seeking the possibility of video trials, while reviewing the possibility of establishing an electronic litigation platform through WeChat in 2019. Over 2020 and 21, China's Supreme People's Court Judicial Committee approved the People's Court Online Litigation Rules, which allowed the proceedings to proceed online in summary financial procedures and parole cases, and other special circumstances. In April 2020, Singapore's Supreme Court enacted the "COVID-19-related Temporary Measures Act" to approve the widespread use of telecommunications. In March 2020, Germany revised the "Criminal Procedure Act" to allow the trial to be suspended for up to two more months in addition to the period set by the "Criminal Procedure Act".

Under the current Criminal Procedure Act, the issue related to non-face-to-face trial proceedings is to overcome the physical limitations of the concept of "attendance" in criminal cases. Accordingly, a new regulation was established for the Defendant or witnesses to have attended court even when proceeding remotely. Electronic and non-face-to-face criminal trials can be uated as promoting openness by expanding the possibility of an audience. To specify. whether judges can properly obtain such additional non-verbal information concerning non-face-to-face trials, or whether the technical devices to hear the non-statement evidence for the court directly is needed must be considered as the main issues.

Subsequently, in this study, a non-face-to-face method of the trial procedure was explored. The 2021 Criminal Procedure Act stipulated requirements and procedures for opening trial preparations in the case that the Defendant does not attend. In principle, summary procedures conducted only by written hearing are expected to be easy to electronification. Even if a witness interrogation is conducted through a remote video trial, it does not infringe on the defendant's right to defend, but rather, it can be uated as more substantially guaranteeing the defendant's right to defend if given the opportunity to remotely interrogate witnesses who are difficult to attend.

The fourth sub-topic dealt with the direction of post-Corona criminal justice and criminal policy alternatives. Among the measures to improve the investigation procedure, it dealt with suggestions on the necessity of being considered online in the process of filing or canceling the complaint and requesting the commencement of the investigation by allowing online complaints and accusations, exploring concrete plans for electronic presentation of warrants. With the enactment of the Criminal Procedure Electronic s Act in September 2021, legal grounds for the electronic presentation of warrants were established, but the procedures, methods, and legal grounds for obtaining warrants electronically did not exist. This study proposed a plan to create an investigation report through the introduction of an online transmission system for digital evidence and automatic recording of telephone surveys.

To minimize the suspension of the investigation process due to infectious diseases and to protect the rights of suspects, this study proposed to introduce online interrogation of suspects. In addition, various measures were discussed to utilize non-contact methods rather than the current face-to-face method, such as non-face-to-face interviews, medical and physical examinations, remote field detection platforms, and the introduction of contactless fingerprinting functions.

Based on these discussions, this study proceeds to discuss ways to respond to the spread of infectious diseases and improve the current trial procedures. To protect information vulnerable people, when non-face-to-face trials are activated, it is necessary to review the online trial assistant system to ensure smooth progress and defense rights. As with the witness interrogation and trial preparation date, it is also necessary to expand the non-face-to-face process so that not only the defendant but also prosecutors and lawyers can attend online on the trial date. To this end, the concepts and procedural regulations of attendance under the Criminal Procedure Act should be completely revised. Due to the spread of infectious diseases, it may be necessary to extend the arrest period of Defendant because of the delay in criminal trial procedures, which is expected to be resolved by the establishment of non-face-to-face criminal trial procedures. To prevent problems about the presumption of innocence, the principle of due process, and the guarantee of the defendant's right to defend when introducing non-face-fo-face, Criminal trials should prepare procedures and evidence laws.

In addition, due to the nature of criminal trials that strictly require legal compliance with procedures, if security issues for trial proceedings were not fully prepared, this might lead to the illegality of procedures. Therefore, more thorough preparation for security is required when using a general Internet network. Concerning non-statement evidence, higher technical means such as realistic telepresence, augmented reality, or virtual reality (VR) remote collaboration will be able to resolve concerns about non-statement evidence or concerns related to trial hearings related to public. Since identity authentication and identification technologies commonly used so far do not confirm the identification itself, biometric technology must be applied to the required level. Furthermore, as unfamiliarity with information technology can lead to infringement of defense rights, even if non-face-to-face trial procedures are introduced, sufficient consideration is required for those with weak electronic information access.
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