인신구속제도의 개선 필요성과 방향 - 긴급체포 및 구속의 제도적 개선점을 중심으로 -

Abstract

For the principles of due process and the principle of human rights guaranteed by the Constitution, this article discusses the necessity and the direction of improvement for emergency arrest and detention system in recent korean criminal procedure law. Specifically, it proposes legislative improvement plan based on theoretical and comparative legal argument about the subject and object of the emergency arrest, the necessity of the ex-post arrest warrant and the subject and period of the detention. From the point of view of the design of the investigation system to protect the human rights of the people, An important issue is finding ways to improve on specific areas where judicial control is not exercised in view of the need for judicial control over compulsory disposition. When emergency arrest was carried out by autonomous judgment of investigation agency, but the detention warrant was not charged and the suspect was released, in the end, it can be seen that for 48 hours, the arrest was made without a warrant, in this case, urgent improvement is necessary. Strengthening the internal deliberation and control procedures of the investigating agency can be an improvement measure so that the emergency arrest can be carried out as carefully as possible. However, due to the nature of object-oriented and invasive investigative activities, enforcing ex-post judicial control is the right way to ensure human rights in criminal procedure. In other words, an emergency arrest must be an ‘exceptional’preemptive action. Ultimately, I think it is necessary to keep the detention of human being in investigation process, in principle, under the leading control of the judiciary. This is because the detention of human being in the investigation process causes a significant infringement of the fundamental rights of the people. If detention is recognized as the authority of the investigation agency, it is highly likely to be abused, even if the investigation process requires detention act for the purpose of investigation. Considering the intrinsic purpose of the constitutional warrantism and comparative legal analysis, I think that it is necessary to change the subject of human being detention to court, and to improve in adjustment of detention period and the operation of arrest place.