현행 구속영장 기각기준에 관한 실무연구

Since the implementation of the examination of the suspect prior to arrest in1997, the rate of dismissal of the warrant of detention increased sharply and it hasbeen staying high despite the rapid decrease on the request for warrant of detention. Such tendency remains unchanged even though the amendment of the CriminalProcedure Act in 2007 added conditions for compulsory consideration such as theseriousness of a crime upon deciding the conditions for detention. Furthermore,there has been a constant criticism upon the criteria of the issuance of warrant sinceit is unclear and therefore cannot assure predictability or fairness. The major reasonis because the phrase 'Risk that the person may destroy evidence or Risk that theperson may flee' in the Criminal Procedure Act regarding the conditions fordetention is too abstract, ambiguous, broad and comprehensive. Moreover, otherreason may be that the Court views the conditions for compulsory consideration inthe article 70, paragraph 2 of the Criminal Procedure Act as merely references. In addition, there is no accumulated precedents since there is no appeal system for thewarrant of detention and therefore the individual judges will reach a differentconclusion based on their beliefs and values, thus rendering the system to losepredictability and fairness. Therefore, considering the legislation of advancedcountries such as Germany, Japan and United States of America, there should be anamendment in relevant acts to introduce appeal system for the warrant of detentionand to put conditions for detention such as the seriousness of a crime, risk ofrepetition of the crime, risk that the person may harm the victim or importantwitnesses as separate conditions for detention along with conditions such as riskthat the person may flee, risk that the person may destroy evidence. Until then, theCourt should respect the judgement of the Prosecutor's Office which is based ondetailed and uniform standard and is strictly controlled by superior's command andsupervision.