영장주의의 비교법적 고찰 - 한국 헌법 제12조 제3항과 미연방헌법 수정 제4조의규범적 특징을 중심으로 -

Abstract

The Comparative Study of Koreann andAmerican Warant-requirement Principle.Mun, Seong-Dothe due process on request of a prosecutor except for exigent circumstance or flagrante delicto. Korean warrant-requirement principle has been influenced by American warrant process from the adoption of this principle to now. It was adopted on the basis of the Ordinance No. 176 proclaimed under United States Army Military Government in Korea(March 20, 1948).This study reviews this warrant-requirement principle from the viewpoint of constitutional criminal procedure. It also attempts to trace its original meaning and to reach its understanding by comparing the American and Korean Constitution on the historical interpretation method.The second chapter discuses the problem of general warrant. As to general warrant, American Constitution prescribes explicitly “no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.”The third chapter reviews that a warrant is required prior to a search or an arrest. Especialy it discuses whether in USA this interpretation is prevailing doctrine. - 186 -The fourth chapter explains that a warrant must be issued by a judge. it discusses why it is a judge who issues a warrant. The fifth chapter reviews whether it is a fundamental factor that a warrant issued on request of a prosecutor. The sixth chapter explains a warrant shall be presented required prior to a search or an arrest and reviews whether no exceptions may not be allowed by Korean Constitution. The seventh chapter discusses that investigative authorities may request an ex post facto warrant, in case a criminal suspect is apprehended flagrante delicto, or where there is danger that a person suspected of committing crime punishable by imprisonment of three years or more may escape or destroy evidence.