[논문] 영장주의의 비교법적 고찰 - 한국 헌법 제12조 제3항과 미연방헌법 수정 제4조의 규범적 특징을 중심으로 -

• 영문명: The Comparative Study of Korean and American Warrant-requirement Principle
• 발행기관: 한국형사법학회
• 저자명: 문성도(Mun Seong-Do)
• 간행물 정보: 『형사법연구』형사법연구 제24권, 163~186쪽, 전체 24쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.12.01

영문 초록

The warrant-requirement principle means that arrest, search and seizure shall not be made without presenting the warrant that a judge has issued in the due process on request of a prosecutor except for exigent circumstance or flagrante delicto. Korean warrant-requirement principle has been influenced by American warrant process from the adoption of this principle to now. It was adopted on the basis of the Ordinance No. 176 proclaimed under United States Army Military Government in Korea(March 20, 1948). This study reviews this warrant-requirement principle from the viewpoint of constitutional criminal procedure. It also attempts to trace its original meaning and to reach its understanding by comparing the American and Korean Constitution on the historical interpretation method. The second chapter discusses the problem of general warrant. As to general warrant, American Constitution prescribes explicitly "no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized." The third chapter reviews that a warrant is required prior to a search or an arrest. Especially it discusses whether in USA this interpretation is prevailing doctrine. The fourth chapter explains that a warrant must be issued by a judge. it discusses why it is a judge who issues a warrant. The fifth chapter reviews whether it is a fundamental factor that a warrant issued on request of a prosecutor. The sixth chapter explains a warrant shall be presented required prior to a search or an arrest and reviews whether no exceptions may not be allowed by Korean Constitution. The seventh chapter discusses that investigative authorities may request an ex post facto warrant, in case a criminal suspect is apprehended flagrante delicto, or where there is danger that a person suspected of committing crime punishable by imprisonment of three years or more may escape or destroy evidence.

목차

Ⅰ. 서 설

Ⅱ. 일반영장금지원칙

Ⅲ. 사전영장원칙

Ⅳ. 법관발부원칙

Ⅴ. 검사경유원칙

Ⅵ. 영장제시원칙

Ⅶ. 예외적인 사후영장 원칙

Ⅷ. 결 어

[Abstract]