수사절차에서 가혹행위의 예방과 억제

• Published in: Tonga pŏphak no. 43; pp. 577 - 597
• Main Author: 허일태(Hoh Il-Tae)
• Format: Journal Article
• Language: Korean
• Published: 동아대학교 법학연구소 01.02.2009; 법학연구소
• Subjects: 법학; the article for distorting law; torture; 수사절차; procedure of investigation; 검찰; prosecutor; 고문; 법왜곡죄
• ISSN: 1225-3405; 2713-5470

It has been over 20 years now since Park, Jong-Chul, who was recalled due to the quality of his reference, died from water torture in 1987. We could say that the police’s or the prosecution’s harsh treatment of suspects in the investigation procedures it conducts is on the decrease. It is doubtful, though, that such cruel act has been totally uprooted. As another incident in which the suspect died due to the prosecution’s torture of him in the investigation procedure that was carried out occurred in October 2002, in 2003, the National Human Rights Commission (NHRC) took cognizance of the police’s torture of suspects and recommended the prosecution of policemen who are found guilty of such cruel act, as reflected in Article 125 of the Korean Criminal Law. The gravity of torture of a suspect lies in the fact that it is not an eventuality but a structural problem in the prosecution. The Constitution of the Republic of Korea has guaranteed the human dignity and the fundamental human rights of individuals. The said constitution stipulates the principles of the presumption of innocence, lawful procedures, the prohibition of torture and the compulsion of a suspect to testify against himself, and the denial of evidences obtained through torture, among others. The constitution enactment authority’s view of the human rights it must safeguard has been reflected in these clauses of the constitution, which had been elevated to the principles on which the Criminal Procedure Act is based. Article 125 of the Korean Criminal Law states: “A person who, in performing or assisting in activities concerning the judgment, prosecution, and arrest of an individual, and other functions involving human restraint, commits an act of violence or cruelty against a criminal suspect or against another person while carrying out his duties, shall be punished by imprisonment for not more than five (5) years and by the suspension of his rights for not more than ten (10) years.” This provision punishes the police or the prosecution for any form of harsh treatment of a suspect it may carry out in the course of an investigation procedure it conducts. In addition, Article 124, clause 1 stipulates: “If a person who performs or assists in activities concerning the judgment, prosecution, and arrest of an individual, and other functions involving human restraint, arrests or imprisons another in a way that involves the abuse of his official authority, he shall be punished by imprisonment for not more than seven (7) years and by suspension of his rights for not more than ten (10) years.” This provision punishes the police or the prosecution for any unlawful arrest or confinement it may commit. To uproot the torture of suspects in investigation procedures, the UN General Assembly adopted “Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment” on December 10, 1984. On January 9, 1995, Korea signed such document, which took effect on February 8. Korea, however, has not yet adopted the “Optional Protocol to the Convention against Torture.” In Korea’s amended Criminal Procedure Act (2007), various measures to prevent and control the torture of suspects in investigation procedures have been stipulated. The cases involving the torture of suspects in investigation procedures are expected to decrease since the new Criminal Procedure Act has been in effect since January 1, 2008. It is not realistic, however, to expect that the harsh treatment of suspects in investigation procedures will be completely overcome simply by such amendment of the Criminal Procedure Act. To completely prevent the commission of cruel acts against suspects in investigation procedures, efforts should be made to ensure that the prosecution and the police are always conscious of human rights. Moreover, effective related legislation based on the Constitution is needed, in addition to the international convention. The UN Convention against Tortur... KCI Citation Count: 1