검사의 영장청구에 관한 헌법적 연구

Abstract

Prosecutor’s requisition for warrants has been stipulated in the constitution since its fifth amendment in 1982. Since then for half a century, the structure in which the prosecutor applies for the warrant and the judge issues has not changed. Prosecutor’s requisition for warrants has been frequently mentioned everytime the issue of prosecution reform was raised, since it was recognized as one of the largest power of the prosecution within the criminal law system. However, since the requisition for warrants is stipulated in the constitution, they cannot be modified or deprived of unless the constitution is amended. The reason why prosecutor’s requisition for warrants was introduced in the constitution was to prevent the misuse and abuse of those rights from recurring. The two elements that compose the warrant system is the requisition for warrants by prosecutors and issuance by the judges, and it exists to concretely guarantee the right to freedom from arbitrary detention which is a basic rights. The Constitutional Court and academia notes that the essence of the warrant system is the judge’s right to issue a warrant, not the prosecutor’s right to requisition for it. However, considering the background that the right to requisition for warrants was introduced in the constitution, the other half part of the warrant system should not be neglected for habeas corpus. Granting the requisition for warrants to prosecutors is delegating the procedure to a legal expert, and thus has an effect of preventing human rights violation by deterring the abuse of the rights to freedom from arbitrary detention. In this sense, the amendment of constitution should be considered in a manner that strengthens the protection of basic rights. The protection and reinforcement of basic human rights should be the utmost criteria when discussing the maintenance or abolition of a clause related to basic rights. Prosecution reform cannot be undertaken by merely deleting the clause that states the requisition for warrants. The clause in the constitution should be maintained in that it reinforces and protects the human rights of people by preventing the misuse and abuse of the warrants.