공소제기 전 구속기간에 관한 몇 가지 단상 - 서울중앙지방법원 2025.3.7., 2025초기619 결정을 계기로 -

The decision in question leaves much to be desired in various respects. First of all, calculating the period during which investigative authorities were unable to conduct investigations due to the court’s warrant review process based on hours rather than days - as explicitly stipulated in the law - may enhance the protection of suspects’ rights, but it arguably exceeds the proper bounds of legal interpretation. If the court had intended to maintain detention, it could have determined the necessity of continued detention ex officio after the indictment, taking into account the circumstances following prosecution. In particular, there are no restrictions on re-detention at the trial stage, even if the court wishes to proceed with the trial while the defendant is not in custody. Once the case is transferred to the court after prosecution, the court can re-evaluate the need for detention regardless of the arrest warrant previously issued by the district court judge. If the legal requirements for detention are no longer met, the court can order the release of the defendant. However, under current practice, the prosecution’s act of filing an indictment automatically extends the pretrial detention period by two months, which is problematic. Even though there is a system for requesting the revocation of detention, this automatic extension still raises concerns. Therefore, just as courts must review and renew detention at the trial stage, there should also be a separate judicial review process to renew detention at the time of indictment. Until such a system is established, the mechanism of detention revocation may be used. However, revocation of detention is appropriate only when the legal grounds for detention no longer exist - not merely because the detention period has expired. In the latter case, the detention automatically loses effect by operation of law, rather than through a formal revocation. Still, if a suspect remains detained despite the expiration of the detention period, a request for revocation can be used to formally confirm and terminate the detention. However, in such cases, immediate appeal (sofortige Beschwerde) is not permitted. The same applies to detention revocations based on other grounds - immediate appeals are not allowed. Furthermore, even though major changes have been made in investigative powers - such as the redistribution of authority between prosecutors and the police, and the establishment of the Corruption Investigation Office for High-ranking Officials (CIO) - the rules concerning the duration of pre-indictment detention remain unchanged. In particular, the rigid 10 + 10 (+10) day structure for detention during the investigation phase is no longer appropriate. Instead, a total detention period of 20 days should be allowed regardless of whether the case is handled by the police, prosecutors, or the CIO. How that period is allocated should be determined on a case-by-case basis through mutual coordination at the time of requesting the arrest warrant.