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The Content and Features of the Preliminary Examination System of North Korea’s Criminal Procedure Act - The construction comment of related provisions and the implications -

  • DONG-A LAW REVIEW
  • 2016, (70), pp.1-73
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

HA TAE YOUNG 1

1동아대학교

Accredited

ABSTRACT

The criminal procedure of Republic of Korea is made up of procedure of investigation, procedure for judgment and procedure of execution. On the other hand, The criminal procedure of North Korea is consisted of four parts; investigation, preliminary examination, prosecution, and judgment. The criminal procedure Act of North Korea has the special preliminary examination system. All criminal cases in North Korea go beyond the trial after the preliminary examination. In fact, The preliminary examination performs a very important task enough to influence the outcome of the trial. The preliminary examination in the criminal procedure Act of North Korea serves to connect the investigation and prosecution. It is the most important procedure that is made up of 103 provisions from the Article 147 to the Article 259 in criminal procedure Act of North Korea. It has formidable provisions which embedded with the substantive truth discovery and a meaning of the criminal policies. It is considered that the preliminary examination conducts the first trial role. The preliminary examination must finish within 2 months from date of the commencement. The preliminary examination institution will determine the preliminary examination within 48 hours after receiving the case from law enforcement agencies, and will determine inquiring into criminal responsibility. The parties are notified of those determination and selected lawyer within 48 hours. And the decision in writing of inquiring into criminal responsibility is sent to prosecutor. Interrogation is to give the parties an excuse opportunities for crimes. Interrogation is carried out within 48 hours, and finishes between 8:00am and 8:00pm. It prohibits threat, induction, and forced interrogation, and will be an individual and separate interrogation. The parties state the case and then the preliminary examination institution interrogates them. The preliminary examination institution recorded all the witness statements, puts even two witness, and can take advantage of an interpreter. Finally, The preliminary examination institution writes the interrogation record, shows the parties it, gives an opportunity to the parties to modify or supplement the content, and gets thumbprint from the parties. After terminating the preliminary examination, the preliminary examination institution notify the parties of it and give them the right to read a recording. At this time, the lawyer is also possible to read a recording. This record is sent to the prosecutor. This is the preliminary examination process of North. The author examined the preliminary examination in North Korea’s criminal procedure Act; duties, conditions, procedures, format, conclusion. And the author also examined provisions about the preliminary examination institution in North Korea’s criminal procedure Act. In conclusion, the author compared the preliminary examination system with the Criminal Procedure Act of the Republic of Korea, pointed out a few other points and found implications. It is suggested that it needs to organize legal terminology until the unification. It is necessary to analyze the similarities and differences about investigation procedures between North Korea and the Republic of Korea and to establish a standard of judgment for recognition and denial of the evidence gathered in the investigation procedure of North Korea. In addition, it has to select the victims(pending investigation into the parties, pending trial the parties, final and conclusive judgment parties). And then it has to review the measures to remedy victims who is suffered from illegal investigations in North Korea's criminal procedure. It’s time to study the batch processing, selecting processing methods, and measures to be handled by separating criminal groups(serious criminal offense, misdemeanor, a political crime). If the core of the investigation is realization of justice and human rights protection, it is thought to be an important criterion in the integrated process. I​t is as in the following; Constitution of the Republic of Korea Article 10 (human dignity and fundamental human rights guarantee), Article 12 (the body's freedom, due process, evidence of the ability of confession), Article 13 (penalties nonretroactivity, the principle of not reopening a settled case, retroactive legislation limits, prohibit guilt by association system), Article 27 (rights to a trial, the accused presumption of innocence), Article 28 (criminal compensation), Article 30 (criminal injury structures). It needs an integrated approach beyond the implicit approach.

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