긴급체포제도와 예외적인 사후영장원칙

Abstract

Few legal problems evoke more passionate debate about the balance between prerogatives of the government and the liberty of the individual than the warrant-requirement principle and exigent arrest system in Korea. The Korean Constitution says that warrants shall be issued in case of arrest, custody, search or seizure, but in case a criminal suspect is apprehended flagrante delicto, or where there is danger that a person suspected of committing crime punishable by imprisonment of three years or more may escape or destroy evidence, investigative authorities may request an ex post facto warrant.(ROK. Const. XII ③) The principle that a warrant should be issued before searches and seizures are made, but that a warrant should be issued even after searches and seizures are exceptionally made without a warrant is called an exceptional ex post facto warrant principle. Nevertheless the korean Criminal Procedure Act says that where there is no time that arrest warrant can be issued by a judge and danger that a person suspected of committing crime punishable by imprisonment of three years or more may escape or destroy evidence, investigative authorities may make an exigent arrest and request an ex post facto custody warrant. Investigative authorities don't request an ex post facto arrest warrant, much less an ex post facto custody warrant where they release arrestee within 48 hours. Many people have insisted that this exigent arrest system violate the Constitution since this system was established newly in 1995. Many people have insisted and rebuked that investigative authorities was making an improper use of their exigent arrest power. With a view to solving these problem, Criminal Procedure Act 2007 provided that investigative authorities shall request an ex post facto custody warrant without delay within 48 hours where they make an exigent arrest, and notify the court of the time and place of release and reasons for release in writing within thirty days from the date of release when they released an exigent arrestee without requesting a warrant of detention. This review looked at what was discussed during introduction and reform of the exigent arrest system, and examined whether this revised exigent arrest system violate exceptional ex post facto warrant requirement doctrine and whether current exigent arrest system has solved the problem of abuse of exigent arrest by comparing the ratios of the types of physical detention such as the ratio of exigent arrests, the rate of flagrant offender arrests, the ratio of arrests with a warrant, and the rate of detentions with a warrant.