압수수색 제한 규정의 형사소송법상 의의 및 피의자 수색에서의 적용 여부 = A Study on the meaning of Search and Seizure Restrictions and whether they apply to Searches of Suspects

다국어 초록 (Multilingual Abstract)

Under the Criminal Procedure Act(‘Act’), ‘searches’ are largely divided into (ⅰ) a search for seizure and (ⅱ) a search for arrest and detention. In accordance with the Constitutional Court's decision and amendment of Article 216 (1) 1 of the Act, in practice, when a suspect is arrested by an arrest warrant, an investigative agency requests a separate search warrant unless there are special circumstances.
After the president declared a martial law in December 3rd, 2024, the Corruption Investigation Office for High-ranking Officials requested a search warrant along with an arrest warrant against the President, and the court issued a search warrant and stated that Articles 110 and 111 of the Act do not apply. After that, it is a question of whether Articles 110 and 111 of the Act apply to the search for arrest of a suspect.
(a) Article 110 of the Act restricts not only "seizure" but also "seizure or search" based on "place" rather than "object". (b) Article 219 of the Act applies Article 110 of the Act to search and seizure for investigation. And, (c) there are no provisions such as Articles 217 and 218 of the Act that exclude the application of Article 110 of the Act from the arrest of the accused in investigation. In this regard, it may be questioned whether Article 110 of the Act applies to the search for a suspect.
(a) Article 110 of the Act is interpreted as restricting the search and seizure of "objects (information) that exist in the place" by saying that "place" cannot be seized and searched, not "at place"; (b) Article 110 of the Act makes it clear that the subject of the restriction is "search for seizure" by saying "military secrets and seizure"; (c) Article 106 of the Act stipulates that "if there are other provisions in the law," while Article 109 of the Act does not provide such exceptions; (d) It is difficult to admit differences in nature in the arrest of a defendant under a warrant or the arrest of a suspect through a warrant; (e) Considering that the right to reject witnesses regarding military and official secrets that Articles 110 and 111 of the Act want to guarantee has nothing to do with the arrest of suspects, Articles 110 and 111 of the Act can only be interpreted as regulations to restrict the seizure and search of objects.