구속영장 청구 및 발부에 있어서 구속사유 판단 기준에 대한 고찰- 형사소송법 제70조 개정과 영장항고제 도입의 필요성에 대하여 -

Abstract

Although the court focuses on the minimum of the arrest and detention, the prosecution calls for the arrest and detention in consideration of the victim protection and the preliminary victim in the serious crime deemed inevitable in the discovery of the truth. However, the conflict or confrontation between the prosecution and the court as a judicial body can cause the people to distrust the judicial system. In order for the justice system to secure confidence from the people, it is necessary to share the recognition that the processing of the warrant is fair and reasonable. First, the criminal procedure law should be revised more clearly and specifically. Therefore, Article 70, paragraph 2, stipulating “seriousness of crime, risk of recidivism, concern for victims and important reference persons” should be revised as the same independent detention reason as paragraph 1 of the same Article. Furthermore, prosecution and courts applying the revised provisions should try to apply the same judgment criterion of the grounds of detention and to derive the similar result. This will prevent unnecessary human, material and time waste. And, through the rational interpretation of the Constitution and the Criminal Procedure Law, it should be possible to appeal against the issuance or dismissal of arrest warrants. Whether an arrest warrant can be appealed depends not on the subject or form of the trial, but on the ideology and purpose of the criminal proceedings. In other words, if it is possible to secure procedural legitimacy while investigating the authenticity of a criminal case, maintain a balance between the suspect, the prosecutor and the victim, and protect the potential victim, it is thought that appeals against the court’s decision to issue or dismiss the arrest warrants are consistent with the purpose of the criminal proceedings.