영장항고와 관련된 쟁점과 개정 법률안 등의 제안

Abstract

In Korea, conflicts between the prosecution and the court over warrant claims and the revocation of warrant continue for a long time, and the conflicts have intensified public distrust of the judicial system. Statistically, the judge's rejection rate of the prosecutor's direct request for an arrest warrant is close to 30% as of 2019. This is significantly higher compared to less than 6% in Germany and Japan, which is attributed mainly to different standards of prosecution and court, and is often described as an error due to excessive warrant claims and an error based on arbitrary judgment as a finite character. The problem is that the prosecution's excessive claim for warrants can be corrected by the judge’s rejection, but the court's error has no procedure to correct the dismissal of warrants, which shows the limitation of fairness. The necessity of appealing against the dismissal of the warrant is that if a suspect is arrested, the suspect will have a chance to detention suitability examination, but if the arrest warrant is dismissed by the court, the prosecutor will not have a chance to correct the judge’s dismissal However, the inequality between the suspect and the prosecutor is offset because a warrant can be requested in response to the reclaim of warrant. However, because, in practice, the review of the detention suitability examination and the reclaim of warrant are reviewed by the judge based on the facts of the crime at the time of the re-appeal due to a change in circumstances after the result of the warrant, rather than undergoing a reexamination of the decision on whether or not to be detained, it seems necessary to correct. Also, this is a structural problem of the substantive examination of the arrest warrant itself. It is not a trial that deals with the substance in a post-indictment trial, but determines whether to be arrested within a limited time by simple interrogation of suspects and defenses based on the investigative agency's initial investigation results, there is a limit to the judge's reason for arrest without reasonable doubt; and thus, it is a constrained structure to reveal the true cause with the principle of clarity and ruling, which increases the judge’s error, therefore it should be able to file a complaint at higher court as a safety measure. However, the Supreme Court says that because it has opened the procedure to indirectly correct the judge's dismissal of the warrant, the court has position that there is no violation of fundamental rights in the Constitution. However, there is no limit to the number of requests for re-examination of warrants, and the judge decides whether to re-arrest based on the fact of the re-applied crime, rather than reexamination of the wrong decision in the case. In this case, the investigation of additional crimes may lead to a long-term investigation, which may result in serious violations of the suspect's human rights. Major developed countries have already operated the warrant appeal system in Britain, the United States, Germany, France, and Japan. The conflict between the courts and the prosecution seems to have intensified recently. In such a case, it seems more necessary to introduce a warrant appeal system for the human rights and social defense of suspects.