현행 피의자 구속제도 운용의 적정성 검토

Abstract

While a government is responsible for protecting its citizens' life and property by establishing the penal rights, on one hand, it is also under obligation to protect even the suspect's life and freedom at the maximum level. Our society must seek these two conflicting objectives at the same time. The government cannot improperly interfere with personal freedom for the interests of achieving the investigative objectives, and must not forego its penal rights for the sake of excessively protecting a citizen's freedom, either. At the frontline of these two conflicting values are the detention of criminal suspects and the assessment of sentences. As widely known, the detention system takes an important status to the extent that it has been called as 'beginning and ending of court decision'. Despite its critical status and functions, the current administration of Korea's detention system has demonstrated many problems. For example, since the detention requirements have been formulated with excessively terse provisions, they have been inconsistently examined depending on the judges reviewing the detention warrants. Furthermore, since even the same judges have applied the different criteria depending on the reviewing time and nature of a case, it has been difficult for even a legal expert to predict its results. While courts have drastically denied the detention warrants under the non-detention investigation principle since mid-1990s, the previous detention rate of 8-10% has dropped to the lowest level of less than 1% detention. The prosecutor office has shown its strong objection to the courts' practices for the reason that the courts' excessive rejection of detention warrants has resulted in an increase in heinous crimes as well as obstructed the substantive fact-finding by compromising the investigative efficiency. It is an important agenda to maintain the appropriate level of custodial detention, because it can be said that a balanced converging point of maximum exercise of penal rights and protection of personal freedom is a Lydian stone. This Paper reviews the appropriateness of the current operation of criminal suspect detention system by comparing Korea's court practices with those of other civilized countries. It is timely and meaningful to assess the appropriateness of Korean courts' detention practices after 20 years of Korean courts' attempts to change their earlier practices. The most desirable administration of detention system is to secure a maximum level of investigative objectives and simultaneously minimize the damaging effects on personal freedom. From this perspective, German detention system can be considered to be most rational and desirable, because it examines a written request for detention warrants and then immediately examines the necessity of extending it just after oral investigation. The USA detention system which allows the investigative entity to detain a criminal suspect without a judicial intervention cannot be a desirable process in this regard. In the same vein, the Korea's detention system which requires excessively rigorous elements is not desirable, either.