검사의 수사개시가 허용되는 범위 - 대법원 2025. 9. 11. 선고 2022도10256 판결 -

초록

This article analyzes the Supreme Court Decision, 2022Do10256, September 11, 2025, which affirmed the illegality of a prosecutor initiating an investigation in violation of the proviso of Article 4, Paragraph 1, Item 1 of the former Prosecutors’ Office Act (hereinafter referred to as the "proviso restricting the initiation of investigation"). The Supreme Court ruled that a public prosecution instituted based on an illegal investigation that exceeded its permitted scope constitutes a case "[w]here the procedure for instituting public prosecution is void by reason of its having been contrary to the provisions of Acts" pursuant to Article 327, Item 2 of the Criminal Procedure Act, and therefore must be dismissed. This case marks the first judgment to determine the legal treatment of a public prosecution based on an investigation that exceeded the permitted scope of initiation. It holds significant importance as it resolves the long-standing controversy surrounding the procedural validity of the proviso restricting the initiation of investigation—specifically concerning the scope of "directly related crimes"—since the 2020 amendment to the Prosecutors’ Office Act. The Supreme Court’s decision to dismiss the public prosecution is closely linked to the legal-policy goal of "deterring illegal investigations." Emphasizing the "[re-] initiation of investigation by a lawful investigative agency" and the "re-institution of public prosecution by a lawful prosecutor," the Court deemed a public prosecution based on an investigation that violated the restriction proviso to be unlawful. This imposition of dismissal serves to curb the practice of prosecutors expanding investigations beyond their authorized scope based on internal guidelines or the former Enforcement Decree on the Scope of Crimes Subject to the Initiation of Investigation by Prosecutors, despite the amendment to the Prosecutors' Office Act. Concurrently, considering that the case allows for a conviction under substantive law, the Court left open the possibility of a re-investigation by another investigative agency. The Supreme Court's conclusion to terminate the case through dismissal of prosecution is highly justifiable. Since an investigation violating the restriction proviso will lead to the dismissal of the public prosecution, prosecutors will be compelled to request supplementary investigations from the police rather than initiating their own investigations. This outcome aligns with the goal of "deterring illegal investigations" while respecting the intent of the legislature. However, a regrettable aspect of the judgment is that it approved the legality of the former Enforcement Decree, which was independently enacted by the Prosecution’s Office without grounding in a superior statute. The legal principles addressed in this judgment are expected to serve as crucial interpretative criteria for the investigative scope of the newly legislated Major Crimes Investigation Agency.

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