검사독점적 영장청구제도에 대한 비판과 입법론적 대안

Abstract

The Korean constitution gives the prosecution an exclusive power to request an arrest warrant, which however cannot be justified based on the following reasons. First, because the prosecution is part of the administration, it is not exercising judicial power but in fact administrative power. Second, while active in arresting as an investigative organization, it is not contributing to the expansion of freedom and human rights contrary to its own claim. Third, under the pretext of warrant investigation, the prosecution is involved in the investigation giving influence on the direction and range of the police investigation. In other words, the prosecution proves itself as an obstacle to the truth and realization of judicial justice. To get over such problems, some judicial solutions need to be provided. First, the article in the Korean constitution in terms of the warrant needs to be revised so that the warrant issued by the court should be sufficient for an coercive investigation of investigative organizations. Second, the police should be given the right to request a warrant like the prosecution. In addition, a post warrant system should be introduced in the case of urgent arrests. To improve the current system, the following measures can be considered. First, the police need to be to some degree independent from the prosecution to make sure that they hold each other in check. The prosecution's guidelines for arrest need to be taken into consideration by the police as much as the police's application for an arrest warrant is positively reviewed by the prosecution for the court warrant. Second, the court should check if the prosecution is following the guidelines of arrest warrants closely on the back of an appeal system. Third, as the present independent special prosecutor law and martial law allow an agent to be designated for the role of the prosecutor, the police can also solve this arrest warrant problem by designating somebody in the police with certain qualifications to exercise the warrant request right through a revision of the criminal procedure law.