체포·구속영장 집행 시 타인의 주거 등에 대한 영장 없는 피의자 수사의 문제 󰡈헌법재판소 2015헌바370, 2016헌가7(병합) 전원재판부 결정(헌법불합치)을 중심으로

Abstract

The Korean Constitutional Court Decision 2016Hun-Ka7 concerns § 216(1) of the Criminal Procedure Act and Article 16 of the Constitution. The court ruled that searching another person’s residence without a warrant is a violation of the foregoing provisions, even though the search is conducted against a suspect for whom the arrest warrant has been issued. Stating that search without a search warrant does not fit in the category of immediate or emergency search, the court ruled that such search violates the warrant requirement guaranteed by the Constitution. However, there is a good reason to argue otherwise against the Constitutional Court’s decision. Searching a person’s residence in order to find a suspect against whom an arrest warrant has been issued is a necessary measure to execute the arrest warrant. Thus, the issuance of a search warrant for another person’s premises prior to the search is unnecessary, and the same goes for the issuance of a warrant after the search. A search on another person’s residence to locate a suspect should be considered as an exception to the warrant requirements for following reasons. First, the suspect can easily change his or her hideout upon the issuance of a warrant. Second, it is practically impossible to execute the search warrant if the current location information of the suspect is needed to be specified. Furthermore, in the case of expedited execution of a warrant under § 220 and 216 of the current Criminal Procedure Act, the restriction of a nighttime search under § 125 and the participation of a person in charge under § 123(2) are not applied. The Constitutional Court takes the view that a separate search warrant is required when searching another person’s premises that harbors the suspect against whom an arrest warrant has been issued. However, this paper argues that the issuance of a separate search warrant is unnecessary in such cases.