압수수색영장 일부기각에 관한 연구

Abstract

'Partial denial' means issuance of warrant with a deletion of one of search premises and seizure properties which an investigation agency seeks. Thorough examination by a magistrate contributes more sincere protection of citizen's fundamental rights. However, despite this positive sight, a current partial denial practice may have some shortcomings to be improved in light of enhancement of legal stability and trust in the judiciary. First part of this article deals with how a current partial denial practice of Search and Seizure Warrant has been running and how this practice influences on an investigation agency's real investigation procedure by conducting a survey targeting prosecutors who are in charge of writing Search and Seizure Warrant application and analysis on a number of real Search and Seizure Warrants which are issued by court. Second part of this article explores foreign countries' practices in order to figure out whether partial denial phenomenon in Korea is a unique practice or a universal phenomenon in the world. Through this case research on foreign practice, it is recognized that a partial denial phenomenon happens very seldom in developed countries and these countries' courts respect autonomy of investigation agencies on Search and Seizure Warrant execution. Furthermore, courts seek a balance between public interest and private interest by prior consultation with investigation agencies and try to establish a criteria for the issuance of Search and Seizure Warrant by full explanation of reason to investigation agencies before a partial denial. Third part of this article examines reasonabilities of current screening and issuance practice of Search and Seizure Warrant in Korea. The current practice of partial denial has a flaw that it may impose a negative impact on legal stability by no or insufficient explanation of partial denial. In addition, it brings about leaks of investigation strategy, enlargement of distrust and degradation of official document to leave deleted parts in Search and Seizure Warrant visible. Moreover, according to current law in Korea, it is reasonable to understand Search and Seizure Warrant as a written permission from court, thus, considering the principle of check and balance, it is desirable that judge's right to modify Search and Seizure Warrant is conducted passively under some limits. Especially, considering the introduction of the exclusionary rule, an excessive partial denial may provoke distrust against criminal justice. Hence, the current partial denial practice should be reviewed. The last part of this article suggest some concrete ways to improve the current practice, such as detailed explanation of a partial denial and prior consultation with investigation agencies, issuance of Warrant without deleted parts, decrease of the rate of a partial denial to that of developed countries, and introduction of warrant appeal and increase of area of Warrant non-applied. This change will help to enhance the community's safety and interest, trust for the judiciary and development of legal theories in Korea.