현행법상 현행범인 체포제도의 문제점과 개선방안

Abstract

The criminal procedure act of Korea provides arrest with warrant, emergency arrest and arrest of flagrant offender as the types of arrest. Among these, criticisms and concerns have mostly been centralized on emergency arrest. But the recent statistics indicate that arrest of flagrant offender is most frequently carried out, that the rate of police requesting detention warrant for arrested flagrant offenders is the lowest and that the rate of prosecution dismissing detention warrant for arrested flagrant offenders is the highest. According to the criminal procedure act, a person who is in the act of committing a crime or has just committed it shall be called a flagrant offender and any person may arrest a flagrant offender without a warrant. And a quasi-flagrant offender, a person who falls under any of the following shall be regarded as a flagrant offender: an offender who is pursued by hue and cry; where a person carries stolen goods, or a weapon or other things recognized as being used in connection with a crime; where there is apparent evidence on the body or clothes of a suspect; and in cases where a person attempts to flee when challenged. This study points out some problems of provisions on arrest of flagrant offender and makes some suggestions for the improvement of them. The problems may be summarized as follows. First, the criminal procedure act lacks post control device of arrest of flagrant offender or quasi-flagrant offender. Second, the criminal procedure act regards a quasi-flagrant offender as a flagrant offender whom any person may arrest without a warrant. Finally, there are no restrictions as to a person entitled to perform a arrest of flagrant offender or quasi-flagrant offender. And the suggestions for the improvement may be summarized as follows. First, the criminal procedure act should adopt an ex post facto warrant system or post control devices of arrest of flagrant offender, similar to them of emergency arrest. Second, the provision of a quasi-flagrant offender, Article 211 (2), should be deleted. Finally, there should be some restrictions as to a person entitled to perform a arrest of flagrant offender according to whether or not the performers has observed someone commit a crime.