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The Ideology of Criminal Procedure and Social Integration - The Ideological Ethos of Criminal Procedure -

  • DONG-A LAW REVIEW
  • 2011, (50), pp.163-199
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

송희식 1

1동아대학교

Accredited

ABSTRACT

The purpose of this study is to examine the ideology of criminal procedure. Generally speaking, the doctrine of substantive truth and due process of law are two ideologies of criminal procedure. But there is no exact term for ‘due process of law’ in German, and Anglo-American skepticism about man does not use the term of ‘substantive truth’. Truth is a fundamental objective of adjudicative processes in German and european continent. Without findings of facts that generally accord with substantive truth, citizens would lose confidence in adjudicative processes as fair and reliable tribunals of justice and as effective means of dispute resolution. Thus, legal finding of fact in a court proceeding should accord with the actual truth. So it is called “substantive truth” and the business of a court of justice is to discover the substantive truth. And they can accomplish the social integration by the justice realization through the finding of substantive truth. In America, the ideologies of highest level are liberalism and republicanism, and so to constitute a substantive limitation on the power of government and procedural safeguards for natural rights is most important. This ethos is expressed as 'due process of law' in criminal procedure. Both the Fifth and Fourteenth Amendments prohibit government actions which would deprive 'any person of life, liberty or property without due process of law'. So in adversary system in America, the discovery of the truth -the substantive truth- is not the objective of the criminal process. The purpose of the criminal process is not to find facts but to resolve a conflict-a conflict that can be defined in a variety of ways. The difference of the doctrine of substantive truth and due process of law is originated from the difference of ethos of the nation, people, or culture. Ethos is the distinctive spirit of a culture or an era. And the ethos of european continent and America is very different, particularly that of the attitude to the nation. One regards nation as the community where justice must be realized, the other regards it as the power mechanism which has temptation to invade the human rights. The ideological ethos of criminal procedure is based on the cultural ethos of the nation. In Korea, the doctrine of substantive truth and due process of law are two ideologies of criminal procedure. The Constitutional Court and Supreme Court seek to the harmony of two ideologies. In our ethos the social integration could be achieved by the harmony of two ideologies. And because the ethos is arbitrary, the harmony of two can be achieved theoretically. But what is the basis ethos of the harmony of the two? The social integration by the ideology of 'due process of law' could be formed on the basis of republicanism ethos. The social integration by the doctrine of substantive truth could be formed on the basis of justice ethos of nation community. Although the harmony of the two is theoretically very good, but we have not the basis ethos that makes the harmony.

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