영장주의의 본질과 영장제도: 체포제도를 중심으로

Under the assumption that each country adopts the warrant systems as a general principle, we compared the warrant systems of the United States, Japan and Korea in this paper, each of which establishes warrant systems guaranteed by the Constitution. As a result, the nature of the doctrine of the warrants is said to be ‘the judicial review by way of the due process of law’. The due process of law not only means that the procedures should be defined by law, but also means that the contents of the law should be identical with the standards of justice. And the judicial review means that the legality of the compulsory measures should be reviewed by someone in an independent and neutral position. In this regard, the doctrine of warrants is the minimum standards to protect citizen’s fundamental rights from the abused compulsory measures. The Constitution of the Republic of Korea adopted such strict factors as ‘the principle of in advance warrant’, ‘the principle of requesting the detention warrant in case of arrest without a warrant’ and ‘the principle of judicial review by judges’ to fortify the doctrine of warrants. However, the provision that grants the authority to request warrants only to public prosecutors should be abolished because it caused serious problems such as undermining the doctrine of warrants. The current Korean Criminal Procedure Act does not require arrest warrants in case of emergency arrest and arrest of a flagrant offender, which is unconstitutional and distorts the original intent of the adoption of the arrest systems by abusing emergency arrest. Therefore, it is necessary to amend the Korean Criminal Procedure Act to request arrest warrants after the arrests without warrants following the doctrine of warrants and the warrant systems guaranteed by the Constitution.