경찰의 영장청구권에 관한 연구

Abstract

Compulsory investigations such as arrest, imprisonment, confiscation, and search seriously violate one's basic rights. Accordingly, the constitutional law states that they are enforceable only when a judge issues a warrant. In other words, even though the compulsory investigations are required to discover the substantial truth of the case, they need to be fulfilled at a level which does not violate human rights unnecessarily. Such decision on whether a compulsory investigation should be carried is made by the local court judge of the jurisdiction upon prosecutor's request. However, seeing that police takes charge of about 97% of the total investigation it is hard to say prosecutors are investigation experts although they may be legal experts. According to the current law in force, a police officer cannot directly request for a warrant for compulsory investigation to the judge and must go through the prosecution even if they feel limited during free investigation. In this case, it would not be of any problem if the prosecution can make a legally appropriate judgment on necessity of the compulsory investigation. However, there are cases in which the prosecutors make unfair judgments and disturb the discovery of the substantial truth mainly due to the fact that they, too, are also social beings. If the monopoly of power leading to an abusement of power is an inconvenient truth, the solution to problems like this would be by providing a system that controls and limits the side-effects of the monopoly of power. Carrying on, there could be two general approaches to overcome the problems caused by monopolization of the right to request a warrant: First approach would be to put a legal restriction so that warranting decision is not made arbitrarily by the prosecution. Second approach would be to partially give police a right to request. First approach needs legalization of certain standards for issuing the warrant, an appeal system for when there exists a suspicion of prosecution being unfair, and introducing and applying rejection, avoidance, and abdication system for the prosecution. Second approach needs legalizing the system in which the prosecution is bound to the police's request for warrant so that they must subsequently request the court for that warrant. In the end, Korean investigations will more efficiently discover substantial truths if the side-effects of warrant request monopoly are effectively controlled by the means introduced in this paper.