유류물 압수와 유기물 취거에 관한 영장주의적 통제 방안

Abstract

Articles 108 and 218 of the Criminal Procedure Act exempt the court s and investigative agencies from seizure of lost and found property, as in the case of voluntary submissions, both prior and post-warrants. Ho wever, the seizure of lost objects is different from the seizure of volun tary submissions in that it does not presuppose the consent of the seiz ed person and that urgency is generally required. Therefore, it is a big legislative problem to treat voluntary submissions the same as confiscat ion without considering these points at all. These are just relics of the old days when human rights awareness was weak. When an investigativ e agency confiscates a lost property, it shall be subject to the control of the warrant rule by excluding the exception to the warrant rule. it i s appropriate However, since the control of an ex post warrant is almo st meaningless to the court, it would be appropriate to leave it as not requiring an ex post warrant as it is now when the court confiscates th e lost property. On the other hand, although there are still no provisions in the Criminal Procedure Act for abandoned items, in the future like now, without a w arrant, the investigation agency will prohibit the removal of abandoned objects that have been left out of the control of a person who has bee n entrusted to theories, precedents, and internal guidelines of the inves tigative agency. It is appropriate to allow However, since the repeated and repeated removal of discarded objects is evaluated to be a compuls ory disposition due to the severity of the violation of fundamental right s, it is appropriate to have it controlled by the warrant principle, but c onsidering the technical difficulties of the legislation and concerns about the side effects of counter-interpretation, it is I think it would be bett er to leave it to the development of theories and precedents rather tha n legalizing it. Based on this purpose, we propose improvement plans for Articles 108 and 218. Article 108 (Seizure of Arbitrarily Submitted Articles, etc.) (1) The co urt may confiscate articles lawfully submitted by the owner, possessor, or custodian without a warrant. ② Items lost by the accused may be confiscated without a warrant. Article 218 (Seizure of Arbitrarily Submitted Objects, etc.) (1) Public prosecutors and judicial police officers may arbitrarily and lawfully seiz e objects submitted by the owner, possessor, or custodian without a wa rrant. ② Items lost by the suspect, etc. may be confiscated without a warran t. However, if it is necessary to continuously seize, a warrant for seizu re shall be requested without delay and within 48 hours from the time 유류물 압수와 유기물 취거에 관한 영장주의적 통제 방안 37 of seizure. Key words : lost and found property, trace evidence, abandoned item