영장주의 예외인 형사소송법 제217조의 적용요건과 입법적 개선

Although a prior warrant is required for seizure and search by investigative agencies (Article 215 of the Criminal Prosecution Act) in principle, search for seizure without warrants is permitted in exceptional cases in view of urgency, etc. (Articles 216 to 218). In particular, Article 217 of the Criminal Procedure Act allows unwarranted seizure and search within 24 hours from the time of arrest when it is necessary to urgently confiscate items owned, possessed or stored by a person that was arrested due to substantive legal requirements. Furthermore, with regard to procedural legal conditions, emergency seizure pursuant to Article 217 must, in principle, adhere to the entire procedure of seizure pursuant to Article 219, with the exception of prior warrants. In this regard, Articles 220 to 217 particularly do not provide predicated provisions recognizing exceptions to the disposition. Accordingly, although it is illegal to perform night seizure after an emergency arrest, night execution is only relatively forbidden, and thus, if a post-warrant is issued with the purpose of night execution, its illegality can be remedied. Furthermore, even if its illegality is not remedied, in the event that the result that contradicts the practice of justice under the Criminal Procedure Act is produced by eliminating the effect of evidence, there is room for such evidence to be used as proof of guilt, unless in exceptional circumstances that an act of procedural violation performed by the investigating agency regarding the effect of evidence of a confiscated item violates the practical details of the legal procedure. Of course, if it is necessary to continue holding a confiscated item, a post-seizure and search warrant must be filed without delay (within 48 hours from the time of arrest). However, if a warrant is not issued, the confiscated item no longer has the effect as evidence of illegal collection and must immediately be returned. The exception to warrants pursuant to Article 217 does not require urgent arrests, temporal adhesion, and locational adhesion, and thus, it would be preferable to make a strict interpretation due to many criticisms regarding the necessity of its existence. Furthermore, it is suggested that the legislations are revised to allow unwarranted seizure, search, or verification within 12 hours from the time of arrest, and Article 220(2) is newly added with the provision that ‘in the case of a disposition pursuant to Article 217, the adhesion of Article 125 is not required when the disposition must be expedited.’