住居地에서 令狀 없는 押收搜索의 實務上 運營에 관한 美國과 韓國의 比較法的 硏究

The Constitutions of Korea and the United States both protect individuals' right to privacy in the home. Therefore this right to privacy in the home should be guaranteed and protected from the government's arbitrary intrusion and abuse of police power. Therefore, if police want to search in the home, a warrant issued by a judge is required. However, under the emergency circumstances, such as search and seizure incident to arrest and consensual exception, a warrant is not needed and impossible to obtain because the police officer does not have sufficient time to obtain a warrant and to prevent destruction of the evidence. Therefore, while the right to privacy in the house is fundamental, this freedom is not unlimited. there must be a balancing test between the right to privacy and the necessity and emergency of intrusion of police officers into the house. In this paper, I will touch on warrantless searches and seizures in the home in the U.S. under the emergency situations such as the consensual searches and searches incident to arrest in comparison to that of Korea. I will also compare the two systems and review this warrantrequirement principle from the viewpoint of constitutional criminal procedure and trace back its original meaning by comparing the U.S. and Korean Constitutions. I will also briefly review warrantless searches of other countries such as Germany and Japan and then review Korea’s arrest system to understand the prospective and trends for Korean criminal procedure reform. In conclusion, after comparing several countries' systems, I argue that there is no fundamental difference of the privacy notion between the two countries. In the U.S. there are supposed to be protections on privacy, but in fact, this fundamental right has lessened as a result of the growth of exceptions to the warrant requirement. And in Korea, privacy should also be protected by constitutional safeguards, but in fact this has not been very enforceable. The primary difference between Korea and the U.S. in this area is just how the right to privacy is protected and when judicial control intervenes in this area.