수사절차에 관한 개정형사소송법의 내용 검토

Abstract

This discussion in this paper on the investigation procedure on the reformed criminal procedure law can be briefly summarized as follows. The arrest and detention of a suspect is a kind of necessary evil for efficient execution of criminal procedure. However thinking the investigation by compulsion give severe pain to the suspect, how to mix them is also a very important problem that we have to solve. In this thesis, I pointed out the problems of our investigation system on the current and reformed our criminal procedure law, and suggested my opinions on them especially from the point of legislation. Of course I am very cautious in dealing this problems between the efficiency of criminal sanction and the protection of the fundamental human rights. At first, the criminal investigator may ask the warrant for detention to the judge in 48 hours basically in case of emergency arrest according to the current and reformed our criminal procedure law, but it must be changed to ask the warrant for arrest before asking the warrant for detention in the same period. And the possibility for fighting against the decesions made by judge on their arrest and detention has to be guaranteed. But it is impossible to interpret our current or reformed criminal procedure law like that. So this is no more than a legislative opinion of mine. Second, I thinkt our emergency search and seizure system accompanying by emergency arrest should be repealed. Because it is doubtful whether it violates the substantial spirit of constitutional law on warrant. Third, the attorney's right to participate in the suspect's questioning are the basic right on the constitution, which comes from the right of suspects to make an attorney help him. So the reformed criminal procedure law stipulated this right for the purpose of deterrence illegal criminal investigation and protect the principle of due process of law. But it has some problems concerning the standard of its limitation. It must be more concrete and clear, and I expect resonable Supreme Court's decision. And finally, the reformed criminal procedure law also stipulated 'the discovery' in a restricted form. But the right to ask discovering documents and evidences must be extended to the investigation procedure.