현행 헌법상 영장주의의 합리적 해석 및 운용방안 - 살아있는 헌법 (Living Constitution)의 시각에서 -

It is the era of the Constitution. The Constitution goes beyond just a symbolic meaning, and is often mentioned in socially important matters. The importance of the Constitution is increasingly emphasized in everyday life and school education beyond academic and legal meanings. The heated debate over Korean constitutional amendment in recent years can be seen as a reflection of such public interest. The current Constitution, amended in 1987, is by no means a faded document published in 35 years ago. The Constitution is dynamic. If so, the interpretation of the Constitution should be also dynamic. The current generation should breathe life into the Constitution through rational interpretation of the Constitution, rather than being bound only by the language at the time of its enactment. It must be made alive. That is the spirit of the ‘living Constitution’. This approach is essential for the interpretation of warrant principle under the current constitution. Article 12 (3) of the Constitution, ‘by the prosecutor’s request’, is hardly ever justified in terms of 1) constitutional history, 2) comparative constitutional perspective, and 3) legal reality. Realistically, if the barriers to constitutional amendment are high, the meaning and effect of ‘nine letters’ can be sufficiently limited through legislation by the Korean National Assembly. This is the reason why it is justifiable to improve the current ‘Warrant Review Committee’ in High Prosecution Office under the Criminal Procedure Act and promote the introduction of police warrant prosecutors.