현행범인 체포에서의 체포 필요성 요건과 판단기준- 대법원 2022. 2. 11. 선고 2021도12213 판결-

Abstract

Arrests of current offenders are similar to arrest, but there is a high possibility of human rights violations as anyone can be arrested without a warrant. Recently, the Supreme Court of Korea has demanded the necessity of arrest as a requirement for arrest of current offenders, and mainly judges based on concerns about destruction of evidence and flight. Since the legality of an arrest is determined by the recognition of the need for arrest, the requirements for arrest and the criteria for judgment are very important in investigation practice. In the target judgment, the Supreme Court maintained the existing position calling for the need for arrest in the arrest of current offenders. It is more reasonable to suppress the abuse of the arrest right through the requirement for arrest rather than allowing unconditional arrest of current offenders. In addition, the Supreme Court supported the judgment of the field police officer, as it could not conclusively judge that there was no need for arrest, unlike the lower court. However, it only presents concerns about the destruction of evidence and concerns about flight as the criteria for determining the necessity of arrest, but fails to present specific criteria. The UK's Police and Criminal Evidence Act (PACE) separately stipulates arrests of police officers and ordinary people, and specifically presents standards for the necessity of arrest. In the future, it is necessary to consider specifying the criteria for determining the necessity of arrest in the Criminal Procedure Act or investigation rules by referring to British legislation. When securing the legality of arrest, such as the need for arrest in criminal proceedings, the reliability of the police's law enforcement will be improved. Even before specific legislation on the necessity of arrest, it is required that the police establish education and judgment criteria for the necessity of arrest so that officers can easily judge the necessity of arrest on the spot.