압수·수색영장 집행단계에서의 문제점 검토

Abstract

The principle of due process, one of the guiding ideas of criminal prosecution is intended to guarantee the human rights of the accused that may be violated in the process of finding substantial facts by the national agency such as investigative agency. This principle is applicable to the process of search and seizure closely related to the legal disposition of the object, especially the procurement of evidence. The evidence collected without obeying the procedures stipulated in the Constitution and the Criminal Procedure Law can not be used as evidence for guilt in principle as it does not observe the due process of law stipulated to guarantee basic human rights. Accordingly, the investigative agency should pursue the harmony between the due process of law and the protection of the human rights for the accused at the stage of enforcing search and seizure warrant. Excessive emphasis on the finding of substantial truth may increase the case of the infringement of human rights. The seized property obtained due to such procedural illegality is denied in the ability of its evidence according to the exclusionary rule. Therefore, this study was intended to present its improvements, For this purpose, it attempted to examine such problems as the duty of prior presentation of the warrant by the investigative agency at the stage of enforcing search and seizure warrant, the scope of noticing the content of the warrant, the problem of participation by resident, the evidence related to other crimes found in the process of legal search and seizure, the problem of procedural delay and the like.