현행 인신구속제도의 문제점과 개선방안 = (A)study on the problems of warrant system of habeas corpus procedure and its improvement way

다국어 초록 (Multilingual Abstract)

The criminal procedure has a mutually incompatible two proposition at the same time i.e. not only the duty to realize national punishment rights but also the guarantee of human rights of individual. Accordingly these propositions collide each other in overall sector of law of criminal procedure, and they are against each other in the field of human body detention sharply. Herewith, the problem how these two incompatible ideas could be arranged by harmonized system, would be the largest and difficult problem for us to solve in criminal procedure.
Above all, the truth finding of actual body in criminal procedure should be faithful for the basic idea of constitution to secure basic rights of individual, observing proper procedure. Considering warrant principle, forced disposal principle by court, prohibition of torture, principle of innocence presumption of constitution and principles of non-restraint investigation and random investigation on law of criminal procedure, the detention of human body should be the last measure allowed inevitably for the security of punishment and exceptional practice and criminal procedure. The case that detention system of human body is utilized for the other purpose except above inevitable case would mean that freedom of human body is harmed by the misuse and overuse of the system. The law of criminal procedure shall respect human rights guarantee of individual as first value better than the functional and effective direction of criminal law under the constitution spirit, and it would be all of our summons to pursue human rights of the accused and proper procedure. But, our former human body detention system has been managed not only for securing of presence of defendant and the accused in criminal procedure, eliminating of prohibition of investigation and trial by evidence destroy and securing of punishment execution but also investigation method to get confession, retribution method against crime by giving punishment function to detention and position considering smooth processing of judgement first.
Herewith, for the purpose of properness raise of human rights guarantee of national people and practice of national punishment rights by improving and complementing the problems appeared on management of current system of criminal procedure ;
1) Declare principle of non-restraint investigation, and judge who got warrant claim shall take hearing from all defendants in relation with guarantee of protection rights of defendants.
2) The point that protection rights of defendant actually by stipulating rights to silence of defendant on investigation and examination of investigating organ and allowing counsel attendance.
3) The enlargement of non-restraint investigation and judgement and realization of equality principle actually by diversifying bail conditions.
4) The point that emergency arrest system is improved partially.
5) The new introduction of evidence opening system that paper or watch and copy of goods may be requested related with the case that defendant or counsel were arraigned, which could be evaluated to be more advancement for human rights security of defendant.
However, it would be questionable still if this criminal procedure is fair to the general human being standard even though this amendment is a promoted law comparing with former law. Namely, it would be true that our law of criminal procedure stress substantial truth principle rather than the idea of proper procedure ,compared with that of advanced foreign country, and " disguised detention cause " acts for the detention in actual practice. The human body detention in criminal procedure is an necessary evil condition that severe restriction should be applied, while it is essential on characteristics. Accordingly, the basic principle of human body detention system management would be recommended to apply necessary condition more strictly, to shorten arrest and detention period, and to observe principle of proper procedure, which lead to that this system can be used in case of inevitable case only.
This study represents to consider processing of transition of human being detention system, to analyse legislation case of advanced foreign country in comparative method, to consider managing state and problems of human body detention system in current law of criminal procedure, and to suggest alternative plan for improvement method.
First, the introduction of arrest preposition principle system would be required in relation with arrest system. Even though arrest system stipulated in constitution was introduced for exterminating of evasive investigation custom like random accompanying and detention in conservation room in 8th amendment of criminal procedure law. But, it didn't adopt arrest preposition principle unlike Japanese legislation case, and arrest and detention parallel principle, the result of which many side effects arise. Namely, the problems on the arrest for defendant hearing before detention, the worry that the arrest warrant system itself may exist but in name only due to claiming detention warrant rightly against unarrested defendant, overuse of emergency arrest and etc. would be suggested. If arrest preposition principle is introduced, these problems may be expected to be improved drastically.
Secondly, more precise legislative improvement would be required for success in warrant principle and in prevention of overuse of emergency arrest system. Since defendant may be arrested without the state that any verification by court is not made for 48 hours that warrant can be claimed, warrant principle of constitution that arrest by arrest warrant is principle turns meaningless. The amended law of criminal procedure is that arrest warrant shall be claimed within 48 hours promptly in case of emergency arrest, and advice system after the fact that a certain article shall be advised to court in letter within 30 days in case defendant arrested urgently was released was established newly. But, the amended law has applied warrant principle for detention only after emergency arrest still, which approves warrantless arrest by the decision period of warrant issue from arrest time, and advice system after the fact also would be questionable in its effectiveness. As considered, the case of advanced country represents that investigation organ can take defendant without warrant, and investigation under custody is possible only by warrant after the fact, and the warrant claim is required promptly after arrest. Accordingly, since lawful advice by judge os not made for emergency arrest with essence to restrict freedom of human body has the aptitude of constitution violation which harms principle of warrant substantially, so it would be right to amend the system to the one that can claim arrest warrant promptly after the fact after emergency arrest.
Thirdly, in relation with cause of detention, the amended law of criminal procedure represents new articles ( Art. 70 Clause 2, Art. 201 Clause 1 ) that seriousness of crime, danger of repetition of offence, harmful worry to sufferer and important reference person shall be considered for court to examine detention cause in Art. 1. Though there are some opinions that the introduction would be needed for some required conditions that serious crime or danger of repetition of offence could be detention cause, these causes are contrary to principle of modern country governed by law, and against the essence of detention, though it is used for general prevention effect for detention. The problem of crime prevention like the danger of repetition of offence and etc. is not the field of law of criminal procedure, and considering constitution spirit of innocence presumption and non-restraint investigation were not settled still as expected and detention is misused still for punishment character before the fact or for convenient investigation, the enlargement of such detention cause would be not desirable. Still, so-called disguised detention cause of outside cause from law due to wrong custom and prejudice formerly influences detention cause, so this amendment would have the worry that it would be misused for detention, considering the current reality that detention of human body is misused.
Fourthly, objective viewing and materialization of detention cause would be needed. Due to the gap between claim standard of warrant and issue standard of warrant by judge, the unbalance that yes or no of detention is caused for similar criminal fact, which lead to the factor which cause distrust of national people for criminal law. The cause of detention must not be of presumption or worry from the idea of judge, but shall be objective viewing based on the concrete fact. Namely, prosecutor must summons that detention cause by court exists when warrant claiming, and court is required to describe process of deduction concretely for required condition of detention in decision of warrant issue. Herewith, the materialization work of affirmative and negative factors considering judgement on the worry of escape or evidence destroy of detention cause by court would be required. The accuracy and expectation possibility of warrant issue standard based on concrete facts would solve the distrust of administration of justice of wilful human body detention.
Fifthly, the selection of conditional release system at the step of defendant enquiry before binding would be required. Defendant should take advantage of constitution spirit of innocence presumption principle and non-restraint investigation until he is found to be guilty in final justice, and if the essence of detention would be the securing of human body in criminal procedure, non-restraint investigation & judgement for defendant whose body can be secured by guarantee would be right. The amended law of criminal procedure has selected " defendant enquiry before binding " as necessary hearing, and in case various release condition is fulfilled as alternative means for detention with hearing defendant, if conditional release by total introduction of defendant bail system and etc. at the early step of human body detention, better human rights enlargement system could be realized more effectively thanks to more activation of connection system of both institution. This would be presumed the system that could satisfy criminal policy demand for effective struggle against crime and law-governed country demand of human rights conservation of national people simultaneously.
Sixthly, the introduction of complaint system against warrant would be required. The mutual relation between court and investigation organ in human body detention should be regarded as the relation of checking each other and balance. Not to allow any disobedience way for defendant enquiry for warrant results in no any checking device against warrant decision by judge, so there would be the eliminating result of chance to correct unfair warrant justice, by allowing disobedience for warrant decision, cases of justice for detention cause could be accumulated, and objective viewing and concrete standards for detention standard can be established. Disobedience for warrant justice should be allowed for not only warrant dismissal but also warrant issue together. No obedience way against the warrant justice of important divide for yes or no of human body detention would be deficient legislation, considering wave length of human body detention. If complaint system against warrant is introduced, the conflict between court and prosecutor for detention standard can be solved, and distrust against administration of justice for defendant detention would be diminished.
Seventhly, the shortening of detention period of judicial police would be needed.
In relation with yes or no of properness of detention period at investigation step, the case of advanced foreign country represents that 10 days of defendant detention period by judicial police doesn't exist. Viewing from actual practice reality, the period of detention period by judicial police would be desired to be changed to 5 days for preventing unnecessary long term detention, and for insuring substantiality of human rights protection at the state that investigation is finished due to almost completion of proving of objective suspicion fact or evidence collection at the step of warrant claim.
Eighthly, the maintenance of legislation style of regulation related with human body detention would be needed. In relation with actual practice reality of human body detention, legislation style related with defendant detention on the law of criminal procedure applies the regulation of forced disposal even though cases of arrest and detention of defendant at the investigation step takes majority. Also, since the arrangement style of law articles was not in order of criminal procedure, general people feel difficulty in understanding principle of law of human body detention. It would be right that the legislation style related with detention of law of criminal procedure is to be stipulated obviously directly at the investigation department with making defendant detention the prime object, and the arrangement style of criminal procedure should be stipulated in processing order of criminal procedure.
I think, for our law of criminal procedure to correspond with general human rights concept of globalization, and reflecting constitution spirit faithfully, introduction of arrest preposition principle, improvement of emergency arrest system, materialization of detention reason, selection of conditional release system at the step of defendant enquiry before binding, introduction of complaint system against warrant, detention period reduction by judical police, maintenance of legislation style of difficult law of procedure and etc. related with human body detention procedure of defendant would be required body.

목차 (Table of Contents)

• 제 1 장 서론 = 1
• 제 1 절 연구의 목적 = 1
• 제 2 절 연구의 범위 및 방법 = 2
• 제 2 장 우리나라 형사절차상 인신구속제도의 변천 = 4
• 제 1 절 조선시대의 형사절차 = 4
• Ⅰ. 개관 = 4
• Ⅱ. 조선시대의 형사절차법 = 5
• Ⅲ. 갑오개혁과 근대적 사법제도의 도입 = 5
• 제 2 절 일제강점기(1910~1945)의 인신구속제도 = 6
• Ⅰ. 명치형사소송법을 의용한 인신구속제도(1912~1922) = 8
• Ⅱ. 대정형사소송법을 의용한 인신구속제도(1922~1948. 3. 31.) = 11
• 제 3 절 형사소송법상의 인신구속제도 = 14
• Ⅰ. 8·15해방과 미군정하의 인신구속제도(1948. 4. 1.~1954. 10. 13.) = 14
• Ⅱ. 1954년 제정 형사소송법상의 인신구속제도 = 15
• Ⅲ. 형사소송법상 인신구속제도의 변천 = 16
• 제 3 장 각국의 인신구속제도 = 20
• 제 1 절 개관 = 20
• 제 2 절 프랑스의 인신구속제도 = 21
• Ⅰ. 사법경찰관의 강제처분권 = 22
• Ⅱ. 검사의 강제처분권 = 26
• Ⅲ. 예심판사의 강제처분권 = 27
• Ⅳ. 구속 = 31
• Ⅴ. 구속 피의자의 석방을 위한 제도 = 36
• Ⅵ. 소결 = 39
• 제 3 절 독일의 인신구속제도 = 40
• Ⅰ. 개관 = 40
• Ⅱ. 구속의 요건 = 41
• Ⅲ. 긴급체포 = 48
• Ⅳ. 구속 피의자의 석방을 위한 제도 = 49
• Ⅴ. 임시감호 = 55
• Ⅵ. 소결 = 55
• 제 4 절 미국의 인신구속제도 = 57
• Ⅰ. 개관 = 57
• Ⅱ. 피의자의 체포 = 65
• Ⅲ. 영장에 의한 체포 = 70
• Ⅳ. 영장에 의하지 아니한 체포 = 73
• Ⅴ. 체포의 집행 및 체포 후의 절차 = 75
• Ⅵ. 미국의 보석제도 = 89
• Ⅶ. 구속적부심사(Habeas Corpus) = 109
• Ⅷ. 소결 = 112
• 제 5 절 일본의 인신구속제도 = 113
• Ⅰ. 개관 = 113
• Ⅱ. 체포 = 118
• Ⅲ. 勾留 = 141
• Ⅳ. 勾引 = 159
• Ⅴ. 보석 = 161
• Ⅵ. 소결 = 169
• 제 4 장 현행 형사소송법상 인신구속제도의 운용실태 및 문제점 = 171
• 제 1 절 체포 = 171
• Ⅰ. 개관 = 171
• Ⅱ. 체포영장에 의한 체포(통상체포) = 174
• Ⅲ. 긴급체포 = 182
• Ⅳ. 현행범인의 체포 = 198
• 제 2 절 구속 = 202
• Ⅰ. 개관 = 202
• Ⅱ. 구속의 목적 = 202
• Ⅲ. 구속의 요건 = 203
• Ⅳ. 구속의 절차 = 209
• Ⅴ. 체포·구속 적부심사제도 = 224
• Ⅵ. 보석 = 231
• 제 5 장 인신구속제도의 개선방안 = 237
• 제 1 절 인신구속제도의 개선방향 = 237
• Ⅰ. 개관 = 237
• Ⅱ. 헌법상 인권보호의 지도이념 = 239
• Ⅲ. 형사소송법상 인권보호의 이념 = 242
• 제 2 절 개정 형사소송법(2007. 6. 1. 법률 제8496호)의 주요 내용 = 245
• 제 3 절 인신구속제도의 개선방안 = 250
• Ⅰ. 체포전치주의의 도입 = 250
• Ⅱ. 긴급체포제도의 개선 = 256
• Ⅲ. 체포와 구속의 범죄혐의요건 구별 = 268
• Ⅳ. 영장단계 조건부석방제도의 도입 = 269
• Ⅴ. 구속사유 = 275
• Ⅵ. 영장항고제도 도입 = 280
• Ⅶ. 체포·구속 적부심사제도 = 284
• Ⅷ. 피고인에 대한 석방제도 통합 및 보석제도 = 288
• Ⅸ. 구속영장청구 피의자심문기간의 구속기간 산입 = 292
• Ⅹ. 상소심 구속기간 갱신 단축 = 293
• XI. 사법경찰관의 구속기간 단축 = 294
• XII. 인신구속에 관한 입법형식 정비 = 295
• 제 6 장 결론 = 297
• 참고문헌 = 304
• ABSTRACT = 309

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