구속요소의 계량화를 통한 구속기준 정립

Abstract

The warrant system enables judges to control the law enforcement agencies' abuse of arrest and detention and ensures civil liberties from the harmful effect in restriction of human body. In order to guarantee the freedom of citizens, the confrontation of prosecutors and courts about warrant may be desirable. But, because the reason of detention is unclear and abstract, ordinary people cannot easily predict whether or not to be in detention. Also, the conflict have sharply arisen between prosecutors and courts about the rejection of detention warrant. To solve the conflict,there are demands to introduce warrant appeal system that prosecutors appeal to courts' rejection of warrant. In the warrant appeal system, the detention standard will be established by the accumulated cases through warrant appeal trial. However,even if court do not make specific decisions and be consistent with uncertain judgments in the warrant appeal trial, the introduction of this system can be meaningless. This could be an intrinsic vulnerability of the warrant appeal system that requires a judgment of court. Therefore, the important thing in the warrant appeal trial is the detention standard that courts will be based on to make a specific decision. The detention standard includes whether to examine and how to evaluate individual detention elements that determine the reason for detention. Particularly, in order to determine specifically, I want to adopt the method that quantifies and weighs individual detention elements. If the detention elements be quantified and weighed, people can understand the detention standard and the conflicts between prosecutors and courts will be resolved to promote the efficiency of their works. By the quantifying of detention elements, judicial distrust can be eliminated and sentencing standards can be complimented. How to quantify detention elements includes:First, detention elements to be quantified should be selected. And there are to list individual detention elements simply and to give a score to each element. How to list individual detention elements simply is the way that the grounds for examining the reason of detention can be inferred from the detention elements displayed in detention warrant. But, this way is not only different than the current system that detention elements are just resources to determine the reason of detention and left entirely to the judge whether to determine. Therefore, the way to give a score to each detention element is better than the way to list individual detention elements simply. In the way to give a score to each detention element, there are to give the same score to each and to give different scores. The former is the way that gives the same score to individual detention element and determines whether to be put in detention or not when their score is more than a certain score. But, because the importance of individual detention elements is different in determining the reason of detention, it is necessary to explain that the individual detention elements be evaluated by the same score. Thus, it is reasonable that the superiority among the individual detention elements be admitted and different scores be given to them. Of course, we should solve the problem that the superiority should be discriminated among the individual detention elements. In principle, indispensable detention is less than certain score and indispensable non-detention is more than. In the middle area of their scores, judges can be allowed to judge discretion on whether to be put in detention or not and must specify the reason for.