[특집] 형사소송법 분야 2003년도 주요판례 = Review of the Major Criminal Procedure Decisions in 2003

다국어 초록 (Multilingual Abstract)

In 2003, the Supreme Court and the Constitutional Court have made some
ground-breaking decisions in the field of criminal procedure. Three decisions in
particular attract academic attention.
In November 11, in a National Security Act violation case, the Supreme
Court recognized the right to have a lawyer during interrogation as a
constitutional right of the suspects/defendants. The Court held that either the
Constitution or the Criminal Procedure Code does not provide any implication
to prohibit the counsel's participation, so the participation should be allowed
from the standpoint of "due process"; that the participation may be restricted
only when there exists probable cause that the counsel would obstruct
interrogation or destroy evidence. With the earlier landmark decision by the
Court in 1992, which held the statements elicited without informing of the
right to silence in interrogation should be excluded, this decision materializes
the Miranda rule in Korea in a full version.
In March 27, the Constitutional Court held that the law enforcement
authority's rejection to provide a complaint document and police interrogation
documents to the suspect is unconstitutional. In its 1997 decision, the Court
had held that the investigation documents should be open to the defendant
after being prosecuted even before the trial court is open. But the 2003
decision made them also open to the detained suspect before being prosecuted
if he/she has requested habeas corpus. By this decision a path is made toward the "discovery" system in the Korean criminal justice system.
In November 27, the Constitutional Court made an important decision that
constitutional value should prevail the special circumstances of military army.
First, the Article 241.1 of the Military Court Act is unconstitutional because
it, different from the Criminal Procedure Code, allows another 10 day extension
in detaining suspects. Second, the Article 43.2 of the Rules for the Military
Prison Act is unconstitutional because it provides that the suspect to meet
his/her family only twice per week during a trial. The Court made it clear
that the guarantee of constitutional value and human right should not be
overshadowed by the logic of the particularity of the military army.
These decisions show that the Korean judiciary has taken more seriously
the procedural rights of criminal suspects and defendants; its endeavors to
control the overgrown power of the investigative authorities by overturning
the domination of the crime control value over the due process value.

목차 (Table of Contents)

• Ⅰ. 들어가는 말
• Ⅱ. 변호인의 조력을 받을 권리의 강화
• Ⅲ. 기소전 체포ㆍ구속적부심사단계에서의 수사기록 열람ㆍ등사의 허용―헌법재판소 2003.3.27. 선고 2000헌마474 결정²³)
• Ⅳ. 군사법경찰관의 구속기간 연장을 허용하는 군사법원법 및 군행형법의 적용을 받는 미결수용자의 면회횟수를 주 2회로 제한하는 군행형법시행령의 위헌성―헌법재판소 2003.11.27. 선고, 2002헌마193 결정
• Ⅴ. 효력상실한 압수ㆍ수색영장에 기한 압수물건의 몰수―대법원 2003.5.30. 선고 2003도705 판결
• Ⅵ. 검사가 직접 작성하지 아니한 검사 작성의 피의자신문조서의 증거능력―대법원 2003.10.9. 선고 2002도4372 판결
• Ⅶ. 불이익변경금지원칙
• Ⅷ. 공소장 변경과 공소시효 완성의 판단기준―대법원 2003.3.11. 선고 2003도585 판결
• Ⅸ. 맺음말
• Abstract