강제채혈의 성질 및 허용요건

• 영문명: Legal Characteristics and Requirement for Compulsory Blood Extractions
• 발행기관: 한국형사판례연구회
• 저자명: 김정옥(Jeong Ok Kim)
• 간행물 정보: 『형사판례연구』형사판례연구 제21권, 387~415쪽, 전체 29쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2013.06.30

영문 초록

The question of what type of warrant is required in order to administer compulsory blood extraction without the intoxicated driver’s consent is closely related to the legal characteristics of the compulsory blood extraction which is a kind of a compulsory measure. Prior Supreme Court precedents had not clarified the legal characteristics of compulsory blood extractions, and so it was unclear which type of warrant allows compulsory blood extractions. This Supreme Court decision merits attention since it explicitly holds that a compulsory blood extraction is permitted by issuing a ‘warrant of permission of expert examination’ or a ‘confiscation warrant.’Regarding the legality of warrantless compulsory blood extractions, although there was the need to recognize an exception to the warrant requirement principle in order to permit compulsory blood extraction, prior Supreme Court opinions provided no clarification of the provisional grounds in the Criminal Procedure Act upon which such warrantless compulsory blood extractions can be sustained. This Supreme Court decision is important because the Court, while maintaining the previous posture that it will strictly adhere to the warrant requirement principle, recognized Article 216 (3) of Criminal Procedure Act as the grounds upon which warrantless compulsory blood extractions are allowed, thereby conspicuously enumerating the specific requirements for permissible warrantless compulsory blood extractions. This decision provides four requirements for a warrantless compulsory blood extraction to be permitted: Urgency; situation amounting to a flagrant offender; the means involved is fair and least burdensome; warrant to be issued ex post. But regarding the requirement of ‘situation amounting to a flagrant offender,’ the concept of ‘location while committing the offense or right after the commission of an offense’ as provided under Article 216 (3) of Criminal Procedure Act suggests that in the case of drunk driving, a hospital is construed as a place where the offender is carried to after the accident merely for the purpose of treatment after the commission of a crime of drunk driving. Therefore, this opinion treating the hospital as a ‘location while committing the offense or right after the commission of an offense,’ appears to be vulnerable to criticism that it overly stretched the meaning of the text. I do agree with the Court’s policy in aggressively employing an expansive interpretation within the language of the current Article 216 (3) of Criminal Procedure Act since, in light of legislations abroad, the geographic and temporal proximity to the criminal act is not directly related to the requirement for warrantless compulsory blood extraction. However, as such interpretation cannot avoid the criticism that it is an overly expansive interpretation of the text, a prompt legislation of adding a provision in the Criminal Procedure Act whereby warrantless compulsory blood extractions are permitted seems necessary.

목차

[대상판결] 대법원 2012. 11. 15. 선고 2011도 15258 판결

I. 강제채혈의 법적 성질

II. 사전영장에 의하지 않은 강제채혈의 허용 요건

키워드

강제채혈 사전영장주의 예외 현행범 범죄장소 compulsory blood extraction exception to the warrant requirement principle flagrant offender location of commission of an offense