헌법상 검사의 영장청구권 존폐론 : 쟁점과 평가

Constitutional Power of Public Prosecutors to Request Warrants : Controversy and Review

According to the Article 12(3) of the Constitution of Korea, warrants issued by a judge through due procedures upon the request of a prosecutor shall be presented in case of arrest, detention, seizure or search. Current reform debate on the powers of public prosecutors to request warrant is being made by three dimensions : the historical background of amendment of the Constitution, human rights policy in criminal procedure, and management of criminal justice system. The debate should find rational, and progressive measures on the issue of warrants and investigative powers in criminal justice reform. Since the 1962 amended Constitution, the Constitution has kept the provision of power to request warrants. The Constitutional Court ruled that the provision aims to control police powers against any violation of civil liberties and human rights. Such constitutional rights design may not be altered just on the ground that there is few cases of constitutions which provide any provision on public prosecutor’s power to request warrant. In any investigative process, the consitutional principle of warrant demands both request of prosecutor and issue by judge. The author cannot find any arguments denying historical justification, political necessity, or international standards on the issue of constitutional provision on the public prosecutor’s power to request warrant in criminal justice system.