刑事訴訟法上 身體內部에 대한 强制搜査의 節次와 限界

This thesis discusses the practicality of compulsory investigation procedures in relation to internal body searches conducted by the criminal investigation institution under the current Criminal Procedure Law(CPL). It will focus on the representative typical cases of (1) X-ray examination identifying the features of internal body (2) compulsory sampling of urine or blood (3) forced outlets of objects in a throat, etc. Current criminal procedure law doesn’t clearly stipulate the compulsory investigation methods mentioned above. Therefore, this paper addresses the priority for the protection of the human rights in light of cases where serious infringement to the personal human rights has occurred by the compulsory criminal investigation. Therefore, the compulsory measures outlined in points (1) and (2) above are made feasible by the examination permit requested by the prosecutor and issued by the judge under Articles of the Criminal Procedure Law 221-4. In addition, method (3) could be executed by the issuance of a search warrant under Article 215 in addition to examination permit according to Article 212-4. The above position could be presented based on the traditional view of discriminating the characteristic, subject and object of the compulsory disposition according to Article 109; internal body searches, Articles 140 and 141; full body searches, Article 173(I); body searches as well as considering the need for the protection of personal human rights. Thus, full body searches without a warrant should not be conducted by the compulsory criminal investigation in any given situation. In addition, an investigation institution can not independently carry out the compulsory examination even with the support of professionals such as medical doctors. This position contributes to the protection of personal human rights. This does however raise potential difficulties in applying the law to situations where there is need for urgent disposition of compulsory blood sampling without a warrant in drink driving cases. However, this problem needs to be addressed by the relevant legislation. Thus, the only practical necessity of compulsory blood sampling is not justified to be included under the scope of body searches described in the law.