독립적 긴급 압수수색 제도 도입에 대한 소고

Abstract

I agree with the introduction of an additional independent emergency seizure and search system for the following reasons. However, it is nec essary to consider in-depth how to properly design and eliminate the c oncerns of opposition to the introduction of the independent emergency seizure and search system. - Despite the variety of circumstances, the current criminal procedur e law only permits emergency seizure and search in a very limited way. Therefore, there is a limit to coping with emergency situatio ns such as destruction of evidence. - From a comparative legal point of view, Korea's current emergenc y search and seizure system is limited. - As the independent emergency seizure and search system is not r ecognized, there may be cases in which the suspect is inevitably a rrested to prevent destruction of evidence, which is contrary to th e principle of proportionality. - If proper judicial control is in place, it cannot be said to be agains t warrantism or due process. - Under the essential principle of investigation(Criminal Procedure A ct Article 196 and 197), emergency seizure can be regarded as th e duty of the investigating agency. - According to the proviso of Article 12 (3) and Article 37 (2) of t he Constitution, if the independent emergency seizure and search i s designed as an appropriate system and stipulated by law, the pro blem of unconstitution or infringement of warrantism can also be p revented. In order to introduce the emergency seizure and search system in ad dition, the legislative theory is presented as follows(only the main cont ents are presented. The premise is to prevent the underwriting of the warrantism). ① 'Emergency' and 'contingency' should be the requirements. ② When introducing a new emergency seizure and search system, th e target crime must be determined by referring to the provisions of em ergency arrest(Criminal Procedure Act Article 200-3) and the proviso to Article 12 (3) of the Constitution. Therefore, it is reasonable to set it as 'crimes punishable with death penalty, imprisonment with labor for an indefinite term, or imprisonment, with or without labor, for not less than three years'. Limiting target crimes will reduce controversy over u nconstitutionality. ③ As long as the emergency seizure and search system is introduce d, a seizure and search warrant must be issued without delay. Therefor e, emergency investigations must be placed under the control of due pr ocess. In this case, the time limit should be set within 48 hours from t he time of seizure, considering the uniform interpretation of period of warrant request for emergency arrest to detention[Criminal Procedure Act Article 200-4 (1)], the uniform interpretation of warrant request period for emergency seizure and seizure at the arrest site[Criminal Procedure Act Article 217 (2)]. In addition, as in Article 216 (3) of the current Criminal Procedure Act('If it is impossible to obtain a warrant i ssued by a judge of the court because of urgency at the scene of an of fense, seizure, search, or inspection of evidence may be conducted with out a warrant. In this case, a warrant shall be obtained after such act without delay'), it is reasonable to issue a warrant without delay, regar dless of whether it is necessary to continue seizure.