부검제도의 개선방안에 관한 소고

Autopsy plays a crucial role in preventing the concealment of serious crimes such as murder and in resolving the grievances of the deceased. Therefore, it is imperative to clearly define the legal nature of autopsy as a form of compulsory investigation. Based on such clarification, the appropriate type of warrant must be selected, and a warrant that satisfies the requisite issuance requirements must be requested to ensure that there is no procedural defect in securing evidentiary admissibility. However, in current practice in Korea, it has become customary to execute autopsies based on warrants issued in the form of search, seizure, and inspection warrants. This entrenched practice raises serious questions as to whether it is consistent with the Korean legal system. Under the Criminal Procedure Act, the issuance of a search, seizure, or inspection warrant requires “circumstances giving rise to suspicion that a suspect has committed a crime.” If the suspected offense specified in the warrant is listed as “unknown,” the object of the probable cause is itself indeterminate, making it impossible to assess whether probable cause exists. Consequently, the warrant fails to meet the legal requirements for issuance and is logically defective. Even if one takes a broader interpretive approach and assumes that the warrant's described crime includes all serious crimes that could lead to death, the nature of autopsy warrants makes it difficult to establish probable cause for criminal suspicion. Moreover, this method of issuing warrants runs counter to the sentiments of the bereaved family. Therefore, as in Germany, there is a need to create separate legal basis within the Criminal Procedure Act that reflects the unique nature of autopsy. If such a provision is introduced, the warrant form should be substantially simplified, focusing on the circumstances of corpse discovery and the specific reasons necessitating autopsy. The creation of a new type of autopsy warrant under the Criminal Procedure Act would require legislative action. Until such an explicit provision is adopted, it is reasonable to classify autopsy orders under the framework of expert evaluation (appraisal), rather than inspection, as autopsy more closely resembles an expert opinion than a physical inspection. On a different note, although autopsy is an essential tool in uncovering the substantive truth of serious crimes, it can significantly infringe upon the emotional state of bereaved families due to its invasive nature. Balancing the competing interests of truth-finding and protecting the bereaved is thus a core challenge of the autopsy system. The current system must be critically reviewed to determine whether this balance is appropriately maintained in practice. In reality, the decision to conduct a highly invasive autopsy is typically based on external postmortem examination, which primarily consists of visual observation of the corpse. As a result, autopsies may be performed without a clear evidentiary basis, leading either to unnecessary emotional harm to the bereaved when an autopsy was not needed, or, conversely, to missed opportunities to uncover crimes when an autopsy was unjustifiably avoided. In cases where postmortem imaging (e.g., CT scans) sufficiently rules out the possibility of homicide, and where it is highly unlikely that traditional autopsy would yield additional findings, it is reasonable for the prosecutor, on the basis of a forensic pathologist's expert judgment, to conclude the cause of death using imaging alone without proceeding to full autopsy. This is justifiable from various standpoints: efficient allocation of forensic resources, the principle of proportionality in criminal investigation, and respect for the feelings of the bereaved. Conversely, if the prosecutor is only presented with two options(full autopsy or no autopsy at all), he or she may lean toward forgoing the autopsy due to expected resistance from the bereaved, even in cases where homicide cannot be fully ruled out due to a lack of clear evidence. This could increase the risk of concealing serious crimes. Introducing postmortem imaging as an intermediate option would allow for the collection of further evidence when there is insufficient basis for a full autopsy, thereby reducing the psychological burden on prosecutors. If imaging provides supplementary grounds for suspicion, it may also help persuade bereaved families to accept the necessity of autopsy. Although the National Forensic Service (NFS) has been utilizing postmortem CT since 2013, its role has been largely limited to supporting traditional autopsy. It is regrettable that CT is not more broadly utilized. For cases where cause of death can be strongly inferred from imaging alone, it would be worth considering a system where CT scans are performed based on a separate warrant, and full autopsy is pursued only when post-imaging suspicion remains unresolved.