구속사유와 구속기간에 대한 소고

There are considerable issues in the interpretation and practical application of the current grounds and duration for detention, highlighting the need for reform. Considering the relationship between the grounds for detention and the detention period, as well as the efficiency of legislative changes, it is necessary to revise both simultaneously. Interestingly, advanced judicial systems in other countries often adopt relatively broad grounds and durations for detention. This reflects a comprehensive consideration of victim and societal protection, the importance of discovering substantive truth, and, at the same time, the protection of suspects and the accused. With regard to the grounds for detention, the current criteria still serve vital functions in discovering the truth and maintaining the order of the criminal justice system. Therefore, it is appropriate to retain them. Currently, “risk of repetition of the crime” and “anticipated harm to the victim, important witnesses, or such” are not independent grounds for detention but merely mandatory considerations. However, in light of the need to protect victims, important witnesses, and public order, these should be clearly established as independent grounds for detention. On the other hand, regarding the “seriousness of a crime”, it is not necessary to designate “seriousness of a crime” as a separate ground for detention. Moreover, in practice, it is not uncommon for suspects or the accused to be at risk of suicide, or for victims or third parties to pose threats to the suspect or the accused. Considering the need to respect life and physical safety, the importance of discovering substantive truth, and the principle that private retaliation should be avoided, it is necessary to establish “protection of the suspect or the accused” as an independent ground for detention(Specific amendment language is presented in the main text). Regarding the detention period, based on comparisons with other advanced judicial systems, the advancement of human rights in Korea since the enactment of the Criminal Procedure Act, and the need to protect victims and society -while also ensuring the right of the accused to a speedy trial and effective defense- it is appropriate to set the maximum detention period during the each trial stage to one year. In light of current judicial practices of routinely renewing detention, abolishing the court's authority to renew detention periods would simplify the system and better reflect practical realities. Likewise, it is reasonable and straightforward to set the detention period for investigative authorities(police and prosecution) at 20 days per stage, with no possibility of extension(Specific amendment language is presented in the main text). And, since the upper limit of the detention period would be extended, to better protect the rights of the suspect and the accused and prevent unjust prolonged confinement, mechanisms such as release by rescission of detention, bail, and review of legality of detention should be more actively recognized. The introduction of conditional detention may also be considered.