검사의 독점적 영장청구권과 통신사실 확인자료 요청허가청구권

The Korean Constitution has explicit provision (Article 12 section 3, Article 16 clause 2) that prosecutor is the only subject of request for a warrant in case of arrest, detention, seizure, or search in order to protect the freedom and human right of a suspect. By the way, the nature of the doctrine of warrants is that independent and neutral judges should determine impartially and objectively the legality of the execution of compulsory investigation. It does not mean a judicial control by the prosecution. Recently the prosecution is criticized for the Infringement of the autonomy of the police investigation and judicial review of a warrant by unfairly dismissed the warrant application of the police officer in the prosecution based on the prosecutor's constitutional monopoly claims of a warrant. Meanwhile, in relation to the investigation of organized crime, drugs offence, terrorist crime etc, despite the importance and necessity of the telecommunication investigation by the investigation agency, the freedom of communication is easily infringed even if there is abuse of provision of a communication confirmed data for telecommunication investigation. Article 13 of Protection of Communications Secrets Act provides that it is necessary to take a warrant, which is issued by a judge in case of requesting to the provision of a communication confirmed data by the investigation agency in order to protect the freedom of communication. This is to ensure strict judicial control and review under the warrant systems. By the way, it is problem what is the legal nature of requesting to the provision of a communication confirmed data according to article 13 of Protection of Communications Secrets Act and that it is proper that prosecutor is the only subject of requesting to the provision of a communication confirmed data. Therefore, this study examines the legal nature of requesting to the provision of a communication confirmed data and the subject of requesting to the provision of a communication confirmed, which is allowed only to prosecutor. And the most important conclusion of this article is that a police officer who has the qualification as a lawyer should be given the right to request of the provision of a communication confirmed data like the prosecutor. In addition to this, a revision of Protection of Communications Secrets Act and its institutional measures are suggested.