구속과 보석 내지 조건부 석방

Abstract

This paper began with the question of what is the reason for releasing a defendant on bail after he has been detained on establishing of the causes of detention. Bail is a system that releases an arrested person by imposing certain conditions by which the reasons for detention can be resolved. From this perspective, I examined whether it would be legislatively appropriate to not give or restrict suspects the opportunity to be released on bail which will remove the causes for their detention until they become defendants. Considering that detention impacts great disadvantages on suspects and defendants, even for suspects and defendants who may escape or destruct evidence, the state should make an effort to avoid arrests and to release suspects and defendants, if such risks can be resolved by imposing certain conditions. Additionally, it is unreasonable to arrest a suspect and then grant bail if he is prosecuted shortly thereafter. In the United States, a magistrate imposes certain conditions immediately after arrest, allowing release with conditions when the risk of flight or danger to society can be eliminated. The United Kingdom and Germany also operate a uniform release system for suspects and defendants, allowing suspects to be released on bail. In conclusion, I think it is most reasonable to determine whether or not to issue an arrest warrant during the warrant issuing process while also allowing bail decisions to be made. Recently, the Supreme Court is considering the introduction of a conditional release system that allows suspects to be tried without detention by imposing certain conditions, such as residence restrictions, instead of issuing arrest warrants to suspects. Conditional release is no different from granting bail to a suspect at the stage of issuing an arrest warrant. Regarding the introduction of this conditional release system, there is criticism that “there is a high possibility that suspects who should be detained might be released, which will go against the protection of victims, obstruct criminal investigation and hinder the finding of the substantive truth.” However, if the conditional release system is implemented in a way that increases the chances of release for suspects by imposing certain conditions and resolving the causes of detention, there is no need to oppose it, but rather, it should be actively supported.