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A Study on the principles of investigation related to the Constitution

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2018, 6(4), pp.185-213
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law

Kim, Yoon Hong 1

1전주대학교

Candidate

ABSTRACT

Since the investigation process basically involves investigation the suspects and defendants, they are closely related to the infringement of fundamental rights guaranteed by the Constitution inevitably. Therefore, it is necessary to examine the extent to which the basic principles of investigation are followed in relation to the fundamental rights of the Constitution in the current investigation process. There are a number of regulations and systems in the investigation process. These regulations and systems serve to achieve the purpose of the investigation or to limit the investigation. The focus depends on the guiding principle of investigation. The guiding principle of investigation differs depending on the viewpoint of investigation. If the focus is on the punishment of the criminal, active substantive truth will be emphasized as a guiding principle of investigation. On the other hand, if the focus is on the guarantee of human rights, the principles of passive substantive truth, presumption of innocence, principle of investigation proportionality and Due Process of Law will be highlighted as guiding principles. As such, the investigation viewpoint is about where to place the principle of investigation, which includes a quadratic viewpoint, an inquisitorial viewpoint, and a accusatorial viewpoint. This should be examined in detail. The purpose of the investigation not only determines the direction and procedure of the investigation but also resolves the issue of human rights infringement during investigation progresses. The investigation principles of Korean Criminal Process Law include the principle of official investigation, the principle of proportional investigation, the principle of voluntary investigation, the principle of non-disclosure of investigation, the principle of compulsory investigation legalism, and the principle of warrant. In this paper, we have examined them and suggested related issues and their solutions.

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