각 체포의 주체와 절차에 관한 실무적 고찰

Abstract

Up to now korean criminal procedure law prescribed restriction and arrest of a flagrant offender, but did not prescribed arrest generally. With the amendment of criminal procedure law in 1995. The system of arrest was introduced in separate item with restriction. A warrant arrest was prescribed as a general form of arrest newly and the emergency restriction in the pre-amendment was changed in to the emergency arrest. So three shape of arrest was possessed. There are many arguments over the subject and procedure of the each arrests similarly to the arrest’s requisites. Most fundamentally, they are the problems how to establish the arrest and the restriction, unitarily or dualistically, and to set the arrest before the restriction necessarily or not although we establish the arrest and the restriction dualistically. Korean criminal procedure law establish the arrest and the restriction dualistically and do not set the arrest before the restriction necessarily. And there are many persons to insist to set the arrest before the restriction necessarily. On the urgent arrest, theories compete severely each other over the problem just like that the ex post warrant of arrest is forced or not. And others, on the a arrest by warrant and the flagrant offender arrest there are many controversies. The purpose and essence of arrest are closely connected with the procedure of arrest just like the a requisite of arrest, especially arrest/restriction dualism, necessity or not of the ex post warrant of arrest. If we seek the essence of arrest in the purpose ‘preparation for restriction’, we must set the arrest before the restriction necessarily, but if we seek the essence of arrest in the summons and investigation separated from restriction, we may not set the arrest before the restriction. And if we regard the purpose of arrest as ‘preparation for restriction’, the ex post warrant of arrest may not be forced, but if we regard the purpose of arrest as ‘the summons and investigation’, the ex post warrant of arrest must be forced. This inclination is notable in urgent arrest especially. Through this paper, I examined the subjects and procedures of the each arrests. On the subject and procedure of the arrest I wish it is not thought of little that the subjects and procedures of the arrests must be decided in the extent that the essential purpose of arrest is the summons and investigation and the danger of violation of the human right through the arrest and the public good as the truth finding and the round up of a criminal are in harmony.