피고인의 구속사유에 관한 고찰

• 영문명: A Study of a Requisite for the Detention of the Defendant in the Current Code of Criminal Procedure
• 발행기관: 경희법학연구소
• 저자명: 정진섭(Jung, Jin-Sup)
• 간행물 정보: 『경희법학』제43권 제3호, 239~266쪽, 전체 28쪽
• 주제분류: 법학 > 민법
• 파일형태: PDF
• 발행일자: 2008.09.30

영문 초록

Section 70 of the current Criminal Trial Act (Act) defines the basis of an detention of a defendant. The purpose of a detention of the defendant, after arrest, is to secure the defendant’s appearance in court and to eliminate any possibility of evidence tampering by the defendant. This also means when the defendant is found guilty, he or she is available for the enforcement of a penalty rendered by the court. While this section pertains to the detention of a defendant, Clauses 1 & 3 of the Section are also applicable when enforcement agencies deal with suspects and have them in custody (Section 201, Clause 1). Thus, the Section can be said to be the general rules for an arrest and detention. The defendant is protected by the “innocent until proven guilty” theory under the Constitution (Section 27, Clause 4) and the Act (Section 275, Clause 2). The defendant should not be treated any differently from an ordinary citizen and any special circumstances should be dealt with in accordance with the relevant laws. Clause 1 of Section 1 defines the elements of an arrest as an existence of suspicion and the reason for an detention as concern of evidence tampering and escape. Meanwhile, Clause 2 deals with issues to consider when examining a detention (seriousness of the crime, repeating offence, safety of the plaintiff), whereas Clause 3 defines special rules for minor crimes. Clause 2 was newly added into the Act as the amendment on June 1st, 2007. The Section, together with the legalism on compulsory execution and obtaining a warrant (Section 201 & 215 of the Act), is a basic rule for human rights and fairness in the legal procedures of a trial, as well as in pre-trial stages through systematic operation. Therefore, any detention made during the investigation stage should have its legal basis in Section 70 of the Act, where the elements to be considered in a detention have been defined (uncertain residential status, concern of evidence tampering, escape, chances of escape). In addition, the amendment of the Act, as of June 1st2007, which defines issues to consider for an detention, such as seriousness of the crime, possibility of a repeated offence, safety concern of the plaintiff or a witness, may all be grounds for varied improvement on this very issue. With the new amendment, and based on the criticism that the court lacked the ability to find a legal basis for an arrest and detention, more objective and concrete precedents are hoped to be established from this point on.

목차

l. 서언 - 형사소송법 제70조의 취지

ll. 피고인 구속의 주체

lll. 피고인 구속의 요건

lV. 구속사유의 심사기준 내지 고려사항

V. 결어

키워드

피고인 구속 구속의 필요성 구속의 사유 형사기소 증거인멸우려 도주우 려 Defendant Detention Necessity of an Detention Reason for the Detention Criminal Charge Tampering with Evidence Concern Escape Concern.