형사소송법 제216조 제1항의 해석과 입법론

Abstract

On December 31, 2019, the Criminal Procedure Act was amended in accordance with the purpose of the Constitutional Court's Decision of nonconformity to the Constitution(2015Hun-Ba370 etc.). That is to say, exigency requirement was added to Article 216(1)1 and Article 137 and the term “To investigate a criminal suspect” in Article 216(1)1 was changed to “To search for a criminal suspect”. Accordingly, if a prosecutor or a senior judicial police officer arrests or detains a criminal suspect or detains a criminal defendant by a warrant, he/she may enter the dwelling etc. of another person and search for the suspect or the defendant without a warrant, only when there is “an exigent circumstance where it is difficult to obtain a warrant of search in advance”. However, even without the addition of this exigency requirement, Article 37(2) of the Constitution and Article 199(1)proviso of the Criminal Procedure Act may lead to the interpretation that a prerequisite for a compulsory measure taken without a warrant is the existence of an exigent circumstance where it is difficult to obtain a warrant in advance. In this sense, I think the Decision of nonconformity to the Constitution was excessive. On the other hand, as a result of the addition of an exigency requirement only to Article 216(1)1, there is room for the interpretation that no exigency requirement is necessary for the measure of Article 216(1)2. It seems necessary to repair regulations systematically that establish an exigency requirement after all. A exigent requirement can be derived from Article 199(1)proviso, so it is okay to delete all the exigent requirements individually prescribed. Furthermore, it is also necessary to consider making a general provision that an exigency requirement is required for the exception of the principle of warrant in the sense of confirmation. In addition, if we understand that Article 216(1)1 and Article 216(1)2 apply “in sequence” in the case of entering another person's dwelling etc. and searching for and arresting a criminal suspect”, it is to be said that Article 216(1)1 applies to entering another person's dwelling etc. and searching for a criminal suspect, and Article 216(1)2 applies to finding and arresting a criminal suspect. In this sense, it should be said that "the scene of the arrest" in Article 216(1)2 begins when the arrest of the suspect is launched. And since “the scene of the arrest” in Article 216(1)2 includes the scene of the detention of a criminal defendant, it is desirable to revise it to “the scene of the arrest or the detention”.