헌법상 검사의 영장청구권 규정의 연혁과 의의

The History and the Meaning of the Prosecutor s Right to Request the Warrant in Korean Constitutional Law

In Korean Constitutional Law, there are two provisions which request warrant issued by judge for several situations. According to this provisions, the prosecutor request the warrant. Therefore there are provided two stage screening in Constitutional Law. The prosecutor s right to request the warrant in Constitutional Law was introduced in 1962, due to the korean people s painful historical experience caused by the illegal arrest and detention, torture and the abuses of compulsory investigation in the times of japanese occupation and the days from the liberation to the revision of constitutional law in 1962. The intent of the provision is to control the abuses of the compulsory measures more powerfully by constructing two stage screening system in which the judge and the prosecutor screen the compulsory measures. In practice, since this two stage screening system was introduced in crimnal procedure law in 1961 and in constitutional law in 1962, it could be evaluated to play an important role in settling and establishing the warrant system in a short period of time of fifty years. Although this provision is distingushing from the comparative view with other country s constitutional law, the speciality should be evaluated to be valuable in including the people s expectation to strengthen the protection of the human rights. According to the change of the times, the consciousness of human rights is enlarged and strengthened. In recent years, as the situations of human rights are more complicated, it should be necessary to screen more carefully in factual and legal aspect. The intent of the two stage provisions in Constitutional Law to strenthen the protection of human rights could be said to remain valid and valuable nowadays as before.