경찰의 영장청구권 효율화 방안-형사소송법 개정법률(안)을 중심으로-

Abstract

The constitution law can be regarded as the highest law that was enacted to guarantee the basic rights of the people. The constitution law stipulates the principle of a warrant that requires the appearance of a warrant issued by a judge in the case of compulsory disposal process by an investigation agency. The progress of the compulsory disposal process could result in violations of one’s rights including personal liberty. Therefore, the judge is required to have a judicial review on the issuance of a warrant to ensure the legality, rationality, and efficiency of such compulsory procedures. However, the constitution law gives the prosecutor the right not only to request the issuance of a warrant, but also to require a judicial review. The prosecutor’s right of request a warrant is stipulated in the constitution law, therefore the Criminal Procedure Act. also specifies the prosecutor as the main one of request for a warrant according to the provisions of the constitution law. However the prosecutor’s request of a warrant can serve as a part of their investigation in the reality that the police are in charge of most criminal cases. To solve these problems, it is necessary to improve the prosecutor's request for a warrant. The prosecutor’s request for a warrant could not be the essential contents of the constitutional law, and if police proceed with the investigation process, it could hinder the securing of suspects and the securing of evidence. It also interrupts the speed of the investigation process and may violate the rights of the people. Therefore, it is necessary to find various ways to grant police the request for a warrant so that the principle of a warrant aimed at guaranteeing the rights of the people can function properly.