구속기준의 객관화와 구속절차의 투명화

Abstract

To prevent the freedom of a citizen, The Warrant System enables the judiciary to control the abuse of warrant in investigation agency. But troubles have sharply arisen between the prosecution and the court about Request & Dismissal of Detention Warrant. These are owing to the various problems occurred in the course of operation of Warrant System. First, Investigation agency has arbitrarily applied the Standard of Detention to Request of Detention Warrant and misused human restriction for the benefit of investigation. Secondly, the court as detention warrant examination agency subjectively interpretations the Standard of Detention and does not present the possibility of presupposition to investigation agency. Also, it introduces peoples into confusion and anxiety. These consequences are that the Standard of Detention fundamentally lacks clearness and objectivity. Besides, It is responsible to the prosecution and court to make arbitrary use of the Standard of Detention. To solve the problems, first of all, We must make the Standard of Detention that people can understand. It is necessary to collect the widespread opinions from academic circles, the court, lawyers, and civil organiazation. The reasons of detention in Criminal Procedure Act should be objectified to make people understood. And they must be more embodied and more subdivided than the reasons of detention in Criminal Procedure Act. And some elements that is considered to decide detention should be demanded for superiority over other elements and measured. Besides, the unification of the Standards of Detention that the prosecution and court have used separately is needed. Secondly, we should clarify the procss of detention. That is, the prosecution and court should record the process of Request & Dismissal of Detention Warrant and a jury must plainly record the concrete cause of Dismissal of Detention Warrant. Thirdly, Complaint of Warrant should be introduced to make the standard of detention apparent by collecting cases of the supreme court. Above all, Detention Warrant System is operated not for the convenience of the prosecution and court but for the benefit of people as demander of judicial service. And We should make efforts to harmonize both value-the protection of the fundamental human rights and the safeguard of people from crimes-.