법관의 직권 구속영장 발부에 따른 피고인 구속의 여러 문제

The Constitutional and Procedural Problems of Defendant Detention by Trial Courts Ex Officio The detention of a defendant during the trial stage is referred to as “defendant detention” (pigo-in gusok). This is categorized into two types: “courtroom detention” (beopjeong gusok), which occurs concurrently with a sentence of imprisonment, and “detention of a defendant during trial" for all other cases. Although defendant detention has recently increased to account for approximately 60% of all detention cases, it has received significantly less scholarly and legal attention compared to the detention of suspects during the investigation stage. Although Article 12, Paragraph 3 of the Constitution stipulates two essential elements for the issuance of a warrant—a request by a prosecutor and the subsequent issuance by a judge—Article 70, Paragraph 1 of the Criminal Procedure Act allows a judge to issue a detention warrant for a defendant ex officio, without a prosecutor’s request. The Constitutional Court and the Supreme Court have held that Article 12, Paragraph 3 of the Constitution applies only to the detention of suspects during the investigation stage. However, the legal basis for such a view is insufficient under a literal interpretation of the provision, and it is difficult to accept from the perspective of maximizing the protection of fundamental rights. The warrant precept dictates that the authority issuing a warrant must be a “neutral and impartial third party.” Since the trial court at the trial stage does not hold such a position, it cannot be the rightful authority to issue a warrant. Furthermore, since defendant detention is conducted ex officio by the trial court, the defendant's right to defense—including pre-detention hearing procedures—is not effectively guaranteed. This practice also conflicts with the “principle of one indictment per case” and the “separate evidence submission system,” both of which derive from the adversary system. Although Article 70, Paragraph 1 of the Criminal Procedure Act requires prima facie evidence of criminal suspicion, trial courts often issue warrants based solely on the indictment, thereby pre-judging the defendant's guilt. This is equivalent to an unlawful issuance of a warrant in cases that clearly warrant a dismissal of public prosecution. Moreover, “courtroom detention” is frequently executed for the criminal-policy purpose of ensuring the execution of a sentence, even when statutory grounds for detention are absent. This constitutes a violation of Article 70, Paragraph 1 and amounts to an unlawful “provisional execution of imprisonment,” which is not recognized under the current Criminal Procedure Act. In conclusion, advanced foreign jurisdictions do not permit the arbitrary or unilateral detention of a defendant by a judge. It is advisable for South Korea to abolish the system of issuing detention warrants ex officio by the trial court to ensure the separation of powers and to fully uphold the constitutional principle of the warrant system.