형사소송법 제216조 제3항의 적용 가능 범위에 대한 검토- 대법원 2017. 11. 29. 선고 2014도16080 판결을 중심으로 -

Abstract

The warrantless search and seizure under the Criminal Procedure Act is stipulated in Articles 216 and 217, but the precedent research on the scope of application of Article 216 Clause 3 is not sufficient. Recently, the Supreme Court ruled on the premise that the crime scene can be searched based on Article 216 Clause 3, and the Book of Court's Practice accepts that it is possible to search without warrant by Article 216 Clause 3. The former may be compared with Article 216 Clause 1 Item 1, and the latter may be compared with Article 216 Clause 1 Item 2. As regards the relationship between Clause 1 and 3 of Article 216 of the Criminal Procedure Act, it is prevalent that Clause 3 should be supplementary to Clause 1, but there is no opinion with reasonable argument. The fact that Article 216 Clause 3 is strictly controlled by court does not make it arguable that Article 216 Clause 3 should be supplementary to Clause 1. Rather, on the purpose of legislation, the process of legislation, and the meaning of the Clause, the two should be regarded as mutually independent. If both are mutually independent, Article 216 Clause 3 of the Criminal Procedure Act is of great significance if the requirements of Clause 1 are not satisfied and only the requirements of Clause 3 are met. Interpreting the Article 216 Clause 3 of the Criminal Procedure Act, the investigating agency can search a crime scene without a warrant. It also can confiscate without warrant, when it legitimately arrest a suspect and a possession of illegal articles is discovered during the search based on the arrest. In this regard, in the United States, police officers may temporarily control access to the search site until a preliminary warrant is issued.