불구속수사·재판의 원칙의 발전과 정체, 인신구속제도의 재편(再編) 방안

The principle of investigation and trial without detention developed rapidly from 1997 to 2009 due to the implementation of the arrest warrant review(of the suspect's face-to-face with the judge) system in 1997 and is now close to the level of advanced countries. However, considering the ratio of detention warrants in investigation and detention defendant in a first trial over the past eight years from 2010 to 2017, it is feared that the current personal detention system may have reached a limit that can no longer be developed due to the stagnant of the principle of investigation and trial without detention. The author proposes a measure to reorganize the personal detention system in order to further develop the principle of investigation and trial without detention. First, detention reasons should be interpreted strictly as a means to prevent thepossibility of escape and destruction of evidence, and specific criteria should be set as necessary reasons for consideration, such as the gravity of the crime, or as independent detention reasons. Second, the law should be revised to recognize in principle the bail of suspects by introducing a conditional release system during the stage of detention warrants. Third, the party should be allowed to appeal a warrant for the detention warrant decision so as to establish objective and uniform criteria for detention. Fourth, the court should ensure that the defense rights of the suspect are fully guaranteed, and the judge in charge of the warrant should include specific reasons in the detention warrant decision, and the detention warrant decision should be given to the suspect as well as to the prosecutor. Fifth, since most of the suspects in the detention warrant trial are assisted by public defenders, the public defender’s assistance should be made available. Sixth, a court that reviews the detention decision shall take charge of not only the suspect’s bail, but also the defendant’s bail. The current bail regulations should be revised to ensure that necessary bail becomes a principle, and working-level operations should also be flexible. Finally, the court should not make it a rule the detention in the first trial sentence and determine whether the accused is detained or not by reviewing the reasons for his detention, such as the possibility of running away and destroying evidence, based on the principle of investigation and trial without detention.