헌법상 검사의 영장청구권 존폐론 : 쟁점과 평가

• 영문명: Constitutional Power of Public Prosecutors to Request Warrants : Controversy and Review
• 발행기관: 한국형사소송법학회
• 저자명: 김한균(Kim Han Kyun)
• 간행물 정보: 『형사소송 이론과 실무』제10권 제1호, 1~22쪽, 전체 22쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2018.06.30

영문 초록

According to the Article 12(3) of the Constitution of Korea, warrants issued by a judge through due procedures upon the request of a prosecutor shall be presented in case of arrest, detention, seizure or search. Current reform debate on the powers of public prosecutors to request warrant is being made by three dimensions : the historical background of amendment of the Constitution, human rights policy in criminal procedure, and management of criminal justice system. The debate should find rational, and progressive measures on the issue of warrants and investigative powers in criminal justice reform. Since the 1962 amended Constitution, the Constitution has kept the provision of power to request warrants. The Constitutional Court ruled that the provision aims to control police powers against any violation of civil liberties and human rights. Such constitutional rights design may not be altered just on the ground that there is few cases of constitutions which provide any provision on public prosecutor’s power to request warrant. In any investigative process, the consitutional principle of warrant demands both request of prosecutor and issue by judge. The author cannot find any arguments denying historical justification, political necessity, or international standards on the issue of constitutional provision on the public prosecutor’s power to request warrant in criminal justice system.

목차

Ⅰ. 논의의 배경과 형세

Ⅱ. 검사의 영장청구권 존폐론

Ⅲ. 2018년 개헌안의 영장청구권 규정

Ⅳ. 이른바 국제적 기준 검토

Ⅴ. 결론

키워드

수사권조정 수사구조개혁 영장주의 검사의 영장청구권 헌법적 기본권 설계 Criminal justice reform Public prosecutor’s power to request warrants Reform of investigative powers Constitutional rights design Constitutional criminal procedure