인신보호법의 제정의미와 활용성

Abstract

In June 2008, Korean Habeas Corpus Relief Act was established, which provides detainees with the right to pursue a judicial order for protection against illegal deprivation of liberty. Now in Korea the writ of habeas corpus can be used as an independent proceeding to challenge illegal detention. The important characteristics or this law are as following : ① the application may be accepted only on the ground that the cause of detention is unlawful, ② prisoners of criminal cases and immigrants committed for extradition are not entitled to this remedy, and ③ the court order is narrowly limited to release of detainees. Introduction of habeas corpus in Korean judicial system is of great significance for controlling illegal deprivation of liberty and providing instant relief. However, it is doubtable whether this law will function well as an effective remedy against illegal deprivation of liberty. Several points are reviewed and criticized in this paper. It is a serious defect that the law excludes prisoners of criminal cases and immigrant detainees. This is hardly justifiable, because those persons are the most vulnerable to infringement of rights of liberty. Moreover, the habeas corpus relief is now available only to persons who were incarcerated. The scope of habeas corpus should be extended to the persons who are in custody in violation of Constitution and related statutes. And in the scope of relief alternatives it is suggested that the court should be able to choose appropriate measures for the effective relief, such as order to transfer to another institution, order to improve the conditions of custody, as well as release order.