체포영장제도의 적정성 재검토

59)Revisiting the Legitimacy of the Arrest Warrant Framework

About 20 years have passed since the arrest warrant system was implemented. From a comparative legal viewpoint, the arrest warrant system in Korea is very unique. A detention warrant can be issued after an arrest or even if the suspect has not been arrested. Before an arrest warrant is issued under the Korean Criminal Procedure Act, in addition to a suspicion of crime having been committed, there must be the suspect’s refusal to attend or a high probability of failing to attend”. Accordingly, the arrest warrant takes on the character of an arrest warrant for detention and an arrest warrant for investigation. This is a mechanical integration of qualitatively different types of warrants, and as such many concerns have been raised since the introduction of the system. Even if detention is deemed necessary, arresting becomes difficult if it does not meet the requirements of the subpoena. On the other hand, the arrest warrant is readily issued if there is reason to believe that there might be a refusal of attendance; hence, the over-issuance of ‘arrest warrants against wanted criminal’might become problematic. Furthermore, issuing a detention warrant without going through the arresting process may not be faithful in protecting the human rights of the accused because it is decided in a relatively short period of time and in just one hearing. There is clearly a need to address the plethora of defects and shortcomings of the current arrest warrant system and make necessary revisions. First of all, the arrest and detention system should be unified with detention preceding the arrest and the practice of issuing detention warrants without arresting the suspect should be abolished. Arrests should always precede the issuance of a detention warrant with the arrest warrant clearly designated for either detention or for investigation. It is necessary to newly establish or expand summary court or summary prosecutor s office to ensure a prompt decision process whether or not arrest warrants are issued. Further, the above measures must be adhered to if there is a need for interim measures or conditional release of the accused in the proceedings after the request or execution of the arrest warrant. To this end, the introduction of a magistrate’s court system and a quasi prosecutor system would be effective in keeping with a timely, just, and reasonable arrest warrant system. The improvement of the arrest warrant system is a way in which to advance criminal proceedings to more faithfully protect human rights of both the accused and the victim.