@article{ART002648910},
author={Lee, Sun-Hee and Kim, Sang-Kyum},
title={A Constitutional Study on the Right of the Minister of Justice to Command and Supervise the Prosecution},
journal={Public Land Law Review},
issn={1226-251X},
year={2020},
volume={92},
pages={391-411}
TY - JOUR
AU - Lee, Sun-Hee
AU - Kim, Sang-Kyum
TI - A Constitutional Study on the Right of the Minister of Justice to Command and Supervise the Prosecution
JO - Public Land Law Review
PY - 2020
VL - 92
IS - null
PB - Korean Public Land Law Association
SP - 391
EP - 411
SN - 1226-251X
AB - The Minister of Justice and the Prosecutor General are heads of agencies under the administration, but the Prosecutors' Office is the agency belonging to the Minister of Justice. Unlike the Minister of Justice, the Prosecutor General is an administrative agency, but is the head of the Prosecutor's Office, a so-called quasi-judicial agency in criminal proceedings. For this reason, disagreement between the two sides in an important criminal case of political interest can lead to conflict. Of course, under the Government Organization Act, the Prosecutors' Office belongs to the Ministry of Justice, and the Ministry of Justice is the top institution. In criminal cases, the prosecution serves as an investigative agency on behalf of the state or as a plaintiff in a trial.
Recently, the conflict between the Minister of Justice and the Prosecutor General is getting serious. In countries where political power influences the functioning of state institutions like Korea, politics always lurks behind the external rule of law. Of course, politics cannot be seen as governing the rule of law, and politics cannot judge everything. Nevertheless, as the political influence on the state function increases, the rule of law is bound to decrease. The premise of the rule of law is human reason, and reason generally refers to the ability to think and judge, and it can be said that it is the ability to properly judge truth and good or evil. Then, as a premise to become the rule of law, the law must be a legitimate law.
The controversy over the power of the prosecutor general to direct and supervise the specific cases of the Minister of Justice stipulated in Article 8 of the Prosecutors' Office Act can be interpreted as a political or normative interpretation of the purpose or purpose of this regulation, or by appropriately combining the two. It is a question of whether or not. Under the Government Organization Act, the Prosecutors' Office is the office of the Minister of Justice. In this regard, administratively, the prosecution administration must be directed and supervised by the Minister of Justice.
The Constitution gives prosecutors important powers with regard to guaranteeing the basic rights of the people in criminal justice procedures. Considering these points, Article 8 of the Prosecutors' Office Act requires the Minister of Justice to direct only the Prosecutor General in specific cases in relation to criminal cases, thereby excluding political influence. The constitution and laws prohibit only legal judgment and political influence in criminal proceedings. In the meantime, if Article 8 of the Prosecutors' Office Act has not been effective in excluding political influence in criminal cases, it should be abolished. In addition, it is necessary to strengthen political neutrality so that the prosecution reform does not have political influence on the exercise of the prosecution power in the direction of strengthening the guarantee of the basic rights of the people.
KW - representative democracy;democratic legitimacy;separation of powers principle;Minister of Justice;Prosecutor General
DO -
UR -
ER -
Lee, Sun-Hee and Kim, Sang-Kyum. (2020). A Constitutional Study on the Right of the Minister of Justice to Command and Supervise the Prosecution. Public Land Law Review, 92, 391-411.
Lee, Sun-Hee and Kim, Sang-Kyum. 2020, "A Constitutional Study on the Right of the Minister of Justice to Command and Supervise the Prosecution", Public Land Law Review, vol.92, pp.391-411.
Lee, Sun-Hee, Kim, Sang-Kyum "A Constitutional Study on the Right of the Minister of Justice to Command and Supervise the Prosecution" Public Land Law Review 92 pp.391-411 (2020) : 391.
Lee, Sun-Hee, Kim, Sang-Kyum. A Constitutional Study on the Right of the Minister of Justice to Command and Supervise the Prosecution. 2020; 92 391-411.
Lee, Sun-Hee and Kim, Sang-Kyum. "A Constitutional Study on the Right of the Minister of Justice to Command and Supervise the Prosecution" Public Land Law Review 92(2020) : 391-411.
Lee, Sun-Hee; Kim, Sang-Kyum. A Constitutional Study on the Right of the Minister of Justice to Command and Supervise the Prosecution. Public Land Law Review, 92, 391-411.
Lee, Sun-Hee; Kim, Sang-Kyum. A Constitutional Study on the Right of the Minister of Justice to Command and Supervise the Prosecution. Public Land Law Review. 2020; 92 391-411.
Lee, Sun-Hee, Kim, Sang-Kyum. A Constitutional Study on the Right of the Minister of Justice to Command and Supervise the Prosecution. 2020; 92 391-411.
Lee, Sun-Hee and Kim, Sang-Kyum. "A Constitutional Study on the Right of the Minister of Justice to Command and Supervise the Prosecution" Public Land Law Review 92(2020) : 391-411.
