형사소송법 제217조와 제220조와의 관계- 대법원 2017. 9. 12. 선고 2017도10309 판결에 대하여 -

Abstract

Recently there is a contention to abolish the clause 217(confiscation. investigation without warrant in case of emergency arrest) in the context of legislation theory with some indication that broadly allowing such confiscation and investigation without warrants differently from other type of arrest without guaranteed legality is with a bit of a problem. However, current clause 217 of code of criminal procedure maintains this stipulation enabling the investigation bureaux to confiscate and investigate without warrants in case of immediate arrest of the suspect. But since this clause might collide with the basic human rights secured in the constitution, it is considered right that the clause requires a strict interpretation and correct legal application. Therefore, the nightly execution as per the clause 125 is restrained in the clause 217 since the clause 220 of required immediate action is not applied, but such a limitation in the nightly execution in the clause 125 is a simple relative limitation of nightly execution and therefore if such inevitable nightly immediate confiscation is done with strict screening followed by post-warrant issuance, acknowledging the admissibility of the confiscation is considered in accordance with the intention of the law. And also though the criminal procedure code 125 stipulates, ‘Nobody is allowed to trespass other persons residence’, it is considered logical and reasonable to interpret and understand this concept of ‘other person’ including the suspect. However, in the above case of judgement, it is suspected that the judgement is made with an omission of such a necessary and important conventional points as to the limitation of nightly execution. In the context of legislation theory, it is suggested to establish a newly stipulated clause which revises towards enabling confiscation and investigation without warrants within 12 hours of the arrest, and at the same time establish a new clause 220-2 that should say ‘In case immediacy is required for the execution as per the clause 217 - except for the clause 123-2 - it is not required to follow the clause 125’.