압수절차에서 참여권을 가진 자- 판례의 동향과 비판 -

In terms of literal, logical, and legislative interpretation, it is justified to exclude prosecutors who may be subject to execution among the participants of Article 121, which is applied mutatis mutandis in Article 219 of the Criminal Procedure Act, among ‘prosecutors, defendants, and defendants.’ Therefore, since it is sufficient to call the suspect ‘suspect or defense attorney’, it is reasonable to view this regulation as stipulating the suspect's right to participate. If the participant is viewed as a suspect, this can be prevented by using the latter part of the proviso to Article 122 of the Criminal Procedure Act and omitting “However, if prompt processing is necessary.” In principle, the precedent grants participation rights to confiscation prisoners, not suspects, and it is believed that participation rights are granted to suspects only in exceptional cases where they can be treated as actual confiscations. At the same time, it shows a contradiction by declaring that the right to participation is recognized for the suspect, and sometimes saying that the right to participate is recognized for both the suspect and the confiscator. This position is an unreasonable interpretation that the rights of those whose privacy or property rights have been violated should be protected, and should be avoided as it undermines the spirit of separation of powers.