중국「감찰법」상 유치제도에 대한 사법통제 - 영장주의를 중심으로 -

Abstract

The detention system has garnered significant attention even before the establishment of the supervisory organ. The function of detention lies in evidence collection and factual regulations, and its nature fundamentally aligns with the power attributes of the inspection committee. The nature of detention represents a new authority distinct from the investigative power under the “Criminal Procedure Act," known as the power of investigation, with political attributes that do not fall within the category of judicial investigative or administrative power. The Chinese supervisory organ, through detention, legally restricts the physical freedom of the subject to conduct investigations, making it a crucial tool used by the supervisory organ during its investigations. While detention can be a potent weapon in the state's anti-corruption activities, it is essentially a double-edged sword, as detention fundamentally restricts personal freedom, potentially leading to violations of the rights of the detained individuals. Subjects must undergo investigations in isolation from the outside world for a period ranging from three to a maximum of six months. Therefore, this paper aims to discuss the introduction of a warrant system as a judicial control measure for the detention system under the Inspection Act. The paper examines the concept and nature of the detention system, the decision-making body, and release, and then reviews the problems of the detention system. Next, it explores the general theory of warrantism, examines the arrest warrant system of the prosecutorial agency, known as “Chinese-style warrantism,” and reviews related theories, evaluating the validity of the system.