긴급체포시 사후영장제도 미비에 대한 입법 부작위 위헌 심사 가능성

Abstract

Regarding arrest warrants, Article 12 paragraph 3 of the Constitution of the Republic of Korea makes it a principle that warrants be issued prior to all kinds of arrest, while permitting as exceptions ex post facto warrants (i) “where a criminal suspect is an apprehended flagrante delicto” and (ii) “where there is danger that a person suspected of committing a crime punishable by imprisonment of three years or more may escape or destroy evidence.” Taking into account the text of the Article 12 paragraph 3 of the Constitution and the history of its amendments, the provision should be construed that it gives to subordinate laws an obligation to stipulate "an ex post facto warrant" to the aforementioned case (i) and (ii). However, regarding case (ii), which is called emergency arrest, the Criminal Procedural Act does not have any provisions for an ex post facto warrant while, based on Article 200-4 paragraph 4, just requesting prosecutors to "notify" to the court such information as specific reasons for emergency arrest, reasons for release, etc. in case they release an arrested criminal without requesting a warrant of detention. This state of the Criminal Procedural Act should be assumed a legislative omission because it stipulates nothing about an ex post facto warrant regardless of the obvious delegation of Article 12 paragraph 3 of the Constitution. Therefore, in my opinion, this legislative omission is considered unconstitutional.