체포제도의 문제점과 개선방안

Abstract

Abstract

Problems of Arrest system and renewal method

National Pukyong University Graduate school, Law department

Kim Sun jung

Criminal procedure law aims to compromise two benefits which collide each other representing the view by each seeking the physical truth to accomplish the legal punishment and civil rights of the accused. It may infringe the most basic individual human right the Constitution guaranteed the biggest inclination that disturb individual rights and liberty in the Criminal procedure law. Concerning this subject our Constitution Article 12 clause 1 declares principle of reasonable due process, and prepared Constitutional regulation for management of criminal procedure in each clause in details additionally in addition to great subject. And our Constitution especially regulated warrant system at article 12, clause 3 to establish the rule of arrest and custody by pre-warrant of arrest, and arrest and custody by post warrant is applied to restrictively only urgent emergency arrest for red-handed and in the case where is possibility of evidence destroy or escape after committing the crime of more than 3 years punishment. Therefore, our constitution and criminal procedure law guarantee individual civil rights through adopting statutory care in forced disposal. However, illegal arrest in the name of voluntary escort in real administration. Considering the fact that there is no alternative option to secure the identity of the accused, it has been tolerated actually. Accordingly identity securing system of our Criminal Procedure law has been developing to be harmonized with securing the human right, but there is plenty necessity of improvement to bring better developed arrest system in actual perspective. By the way, After revision of Criminal Procedure law amendment in 1965 we could summarize the improvement plan for actual legal system as followings. Firstly, the degree of accusation of the suspect in the requirements of arrest by warrant should be lowered in its criminal contents of the crime than the suspect of crime as requirements of emergency arrest or custody arrest. Secondly, on the notification of Miranda rule over the crime at the time of arrest it needs revision in giving notification of the Miranda rule immediately after the arrest in the case of emergency arrest or arrest for the red-handed. Thirdly, under the present system charging the arrest warrant is permitted to the prosecutor only, it seems it might be proper measure to allow the judicial police officer to charge the warrant for arrest considering the fact that it is possible for the judicial police officer attended nearby to judge the decision for arrest as soon at the crime scene, and to strengthen their commitment of pride and responsibility who deals with 90% of the crime, and for the purpose of recovery of exception of emergent arrest. Fourth, the object crime of emergency arrest prescribed at Article 200, clause 3 in the Criminal procedure Law, when there is quite reasonable reason provided that in a case where a criminal suspect is an apprehended flagrante delicto, or where there is danger that a person suspected of committing crime punishable by imprisonment of 3 years or more may escape or destroy evidence, and it is emergency situation with no enough time for the warrant, investigation authority may arrest the suspect by an ex post facto warrant. According to this regulation it might provides the criteria that arrest without warrant is available against almost all the crimes prescribed at each regulations of the Criminal Law, and exceptional arrest without warrant is administered more numerously than normal arrest. I suppose it needs to practice the rule strictly requirement of significance of the crime due to absence of post warrant by raising the regulation from 3 years of imprisonment to 5 years imprisonment of present rule, and it would meet the principles of final bargaining chip of criminal law. Fifthly, I think it's necessary to bestow the right of arrest by post warrant while it is limited to prosecutor or judicial police for issuing the arrest warrant. They approve the emergent arrest by post warrant to police officer without discrimination in the countries as Germany, United States and Britain. Sixthly, requirement of arresting the red-handed in minor offense needs to be amended to as " in case where residence or name of the suspect is unclear or the suspect may escape". In conclusion, in the case of forced measure which limits the personal liberty, the measure should be easy and detailed based on descriptive regulation of the law, and there should be discrepancy or inconsistency with real crime scene or spot. By doing that, it would diminish the collision and argue between the law enforcement and the accused, and with the recognition the law should be kept by everyone, it would establish free democratic legal order through bringing the harmony of protection of human rights and achievement of the criminal law and justice by proper legal enforcement of the criminal law.

Main term: arrest system, securing the suspect, statutory care in forced disposal, Miranda rule, proper procedure, illegal arrest.