영장청구주체입법의 변천 및 평가

Abstract

Korean Constitution has explicit provisions(Article 12 section 3, Article 16 clause 2) that prosecutor is the subject of requesting writ. But it's not necessary that the subject of requesting writ should be specified in the constitution. Because the constitutional essence of the writ system is that: as for compulsory investigations, independent judges should determine impartially and objectively the legality of the execution of compulsory investigation. Thus, providing judges as the subject of issuing writ in written constitution is enough to guarantee constitutional writ system. This essay tries to find the reason in the legislative history why Korean Constitution has such unprecedented provisions. In Korea, writ system was introduced for the first time in history through USAMGIK Ordinance No.176. At the constitutional level, Article 9 of Korean Constitution in 1948 provides that "a writ has to be presented in case of arrest, detention, seizure, or search", without saying who should be the subject of issuing writ. §§ 205, 215 of the Criminal Procedure Act in 1954 could be interpreted in the manner that police officer as well as prosecutor could request a writ. After 5ㆍ16 military coup, through the amendment of the Criminal Procedure Act on Sept.1.1961, it was provided that prosecutor should intermediate in the process of requesting a writ. In 1962, the 5th Constitutional amendment was followed, in which that provision was raised to higher status of Constitutional Article. Prosecutor's competence to request a writ was reinforced in Korean Constitution in 1972 and then, in Korean Constitution in 1980, came back again to just the same as before. In Korean Constitution in 1987, the phrase "through due procedures" was added to previous text. It’s odd that we cannot find the historical materials about why and how to stipulate prosecutor's competence to request a writ in the constitutional text. Supposedly, it seems like that the standpoint of prosecutor's side was strongly, or unilaterally, considered in the political chaos directly after the military coup. Nowadays, the amendment of Korean Constitution is actively discussed. On this occasion it'd be desirable to delete constitutional provisions on the subject of requesting a writ and to leave it up to the national assembly to decide who should be the subject of requesting a writ.