형사소송법 제216조 제1항 제1호의 위헌성에 대한 검토

Abstract

This paper treats whether a recent decision(decision incompatible with the constitution) of the Constitutional Court is valid or not, according to which criminal procedure law article 216 clause 1 number 1 is unconstitutional in that it is against the warrant requirement of constitutional law article 16 though it does not violate the principle of clarity. By the way, this decision seems to be a conclusion based on an interpretation which relies on an excessively simple approach. According to such an interpretation, the 'necessity' in the above regulation implies 'the probability that a criminal suspect will be in others' dwelling etc.'. But the author thinks that such a Constitutional Court's interpretation is improper even if it is one of possible interpretations, and therefore its decision based on it is improper too. The just reason that the author thinks such an interpretation is not proper lies in its separation from the other regulations which are regarded as the ones regulating about the exceptional examples of the doctrine of warrants. Under a critical mind like this, seeking a new approach which is different from that of the Constitutional Court, the author suggests a more rational interpretation which considers not only the purposes of the other clauses in the same article and the other regulation but also the systematic relation of those regulations in totally. At the same time the author argues that such an interpretation is proper. As a result, the author thinks that it would have been unnecessary for the Constitutional Court to make a decision incompatible with the constitution if its judgement had been made based on the author's interpretation. Because it could have made the constitutional decision or at least the decision of limited constitutionality in that case.