강제처분의 절차적 위법 치유 가능에 대한 비판적 연구 : 대법원 2016.6.14. 자 2015모1032 결정을 중심으로

Confinement and seizure･search are legal dispositions and these should be conducted in conformance with those required by the Criminal Procedure Code based on the Section 1, Article 12 of the Constitution. Hence, any cases of confinement and seizure･search that are in violation of the legal procedure should naturally be violation examples and any evidences that have been acquired through any legal dispositions should lose the admissibility of evidence. However, the [Object Decision: the Supreme Court Decision of 2015Mo1032 dated June 14, 2016] of this paper is presenting a healing possibility for the matter of violating the Article 72 that requires “the Prior Hearing Procedure” in conducting a confinement. Regarding this, in this paper, it is attempted to criticize the [Object Decision: the Supreme Court Decision of 2015Mo1032 dated June 14, 2016] that has presented a practical judgment standard about the deficiency of procedural regulations on the basis of the legal principles from the Supreme Court that are judging on whether or not the [Comparison Decision: the Supreme Court Decision of 2011Mo1839 dated July 16, 2015] that has dealt with the nature of procedural violation of seizure･search and the “strikes” as a justifiable act are in violation of the law as to their procedural aspect. First of all, the [Comparison Decision] construes the nature of procedural violation of seizure･search in its strict sense. In other words, even when there is a deficiency in any part of the legal procedure of “presence of concerned parties” during the process of conducting a seizure･search act, the (complete) steps of the seizure･search act have been viewed to be in violation of the law. Next, with regard to the “strikes” as a justifiable act, the unanimous decision of the Supreme Court 99Do4837 that was sentenced on October 25, 2001 has been providing the basis for making a judgment about the legality of strikes in consideration of their conformance with the formal legal procedures and regulations. This decision bears its meaning in the aspect that the conventional attitude of making a practical judgment on the procedural legality of strikes has been changed. It is reasonable that the presence of any illegality of violating the regulations concerning the legal disposition is formally construed in its strict sense. In such a viewpoint, it is judged that, in the judgment of the procedural illegality of the violations of regulations as concerned with legal disposition, the [Comparison Decision: the Supreme Court Decision of 2011Mo1839 dated July 16, 2015, unanimous decision] is superior to the [Object Decision: the Supreme Court Decision of 2015Mo1032 dated June 14, 2016]. In addition, as the legal principles of the Supreme Court that determines the requirements for a strike to be a justifiable act, also when conducting a confinement, the healing of the illegality of a procedural deficiency should be judged not by whether the ‘practical guarantee’ of a procedural right is given or not, but by whether a procedural right is being observed ‘objectively and formally’ or not.