영장주의 예외인 형사소송법 제216조 제3항의 적용 범위와 사후영장

Abstract

Under the currently enforced law, a pre-warrant is required in principle for seizure and search by investigative agencies (Article 216 of the Criminal Prosecution Act), however, considering urgency, etc., unwarranted seizure, search, and verification is permitted in exceptional cases (Articles 216 to 218). Particularly among those, as a legal requirement pursuant to Article 216(3) (unwarranted seizure, search, and verification at the place of crime), ‘during or immediately after the crime ‘at the place of crime during or immediately after the crime’ is not a concept that has the arrest of the criminal as a premise, and thus, the temporal relativity with a criminal activity is somewhat relaxed, which results in a broad relative concept, thereby including the situation of being a real quasi-executive criminal. Furthermore, the place of a crime fundamentally refers to site of a crime, which includes a place where a crime has entirely or partially occurred. In this regard, case holdings also broadly interprets temporal relativity to be based on social conventions, and thus, as long as temporal relativity is acknowledged, the place of the crime is broadly interpreted, which results in the ‘hospital transferred to after an accident’ being considered to be within the scope of the place of the crime. Secondly, the case ‘where a court judge’s warrant cannot be received based on urgency’ refers to the case where there is a great concern about distributing or destroying evidence due to time intervals based on a prior seizure, search, or verification warrant, and urgent seizure, and the subject of urgent seizure may be owned or stored by the suspect, however, there is no question that the seizure must be carried out to the extent that ‘relevance’ and ‘proportionality’ are recognized. The problem is the priority between prior-warranty exceptions. Although it is not impossible to confiscate arbitrary submissions (Article 218) made without prior or post-warrants for items arbitrarily submitted by the holder at the place of the crime, it can be abused by means and must be judged very strictly. In legislative terms, since the Korean Constitution only has exceptions to ‘prior’ warrants, it would be preferable to request an ex post warrant even in the case of Article 218 (seizure of arbitrary submissions). In addition, in the case where the criminal is arrested as the current criminal, Article 216(3) applies only to cases where the investigating agency has not arrested the criminal, because unwarranted seizure, search, and verification can be performed pursuant to Article 216(1)(ii). However, from a legislative perspective, it is considered that Article 216(3) requires at least the legalization of the ‘period’ for requesting a warrant ‘within 48 hours from the time of seizure, search, and investigation.’ Furthermore, failure to meet the requirements of a warrantless seizure at the place of crime constitutes an illegal seizure, and thus cannot be used as evidence of guilt, and even if a “consent to voluntary submission of seizures” is obtained from the accused immediately after the illegal confiscation, it would still constitute an illegal seizure unless extenuating circumstances emerge. The problem emerges when the illegally confiscated goods are returned and confiscated again in a form of immediate arbitrary submission.