搜査機關의 人身拘束과 人權保障에 관한 硏究

Abstract

Since the nation has a responsibility and an obligation for protecting the national safety from the crimes, it must start to investigate and reveal the reality when there happens the crime, but it should be done within the due process of law. However, as the authority, in the reality of the investigation, deals with the suspect as the criminals, and arrests them as the menas to realize the national authority of the punishment, the illegal acts which not only have neglected the due process of law but also have been very generalized, not exceptionalized, this type of investigation in the process of the investigation have been executed implicitly. Therefore, Korean Constitution Law defines the principle of presumption of innocence and the due process of law which would not take a place of the violation of human rights in the process of the on-going criminal case, and declares the principle of the proportionality that arresting should be used only when the fair public profits that it is impossible for the social defense of the crime to be accomplished by the other ways, is admittable. For these definition, Criminal Procedure Law introduced the arrest system with three points in order to establish the national authority of Punishment; First, the legal principle that the disposition by legal force should be minimized within the minimum limit and the advanced warrant issued by the judge. Second, Eradication of Illegal investigation procedure generalized from the past such as voluntary accompanying by investigative agency and detention for protection. Third, Establishment of the lawful investigation procedures. However, as there have been many problems such as the abnormal detention due to the deficient legislature and the wrong practice, criticisms that the human rights of the suspect are not protected have been raised. Therefore, this study examines the types and problems of the arrest system of person in Korea through the comparative analysis with the foreign arrest system in order to overcome such a reality and secure the human rights of the suspect. For the above things, it consists of six chapters focusing on the presentation of the rational improvement methods. Chapter 1 describes the purposes, the range and the methods of research. Chapter 2 explains the general theories of arrest and the human rights of the suspect, and Chapter 3 examines the arrest system of person in the foreign advanced countries. Chapter 4 investigates the arrest system of person and the protection of the human rights in Korea. Chapter 5 examines the problems and the improvements in the security of the human right of the suspect, and finally chapter 6 summarizes and arranges the contents of the arrest and the human rights of the suspect. In my study, the items which should be improved immediately for the protection of the human right of the suspect are as follows; First, on the Detention Warrant Examination System, I suggested the necessity for introducing the principle of arrest after reconsideration, converting it into the necessary examination and inputting the period of the real investigation of arrest into the period of arrest. Second, on the Review System of the Legality of Detention, I also suggested the necessity of the acknowledging right of request to inquiry for those who are arrested without the arrest warrant or caught in the fact. Third, on the suspect bail system, I presented that the suspect must have right to request bail in order to plead himself or herself as well as the necessity of approving bail in the stage of the real investigation of the arrest warrant is proposed for the purpose of activating bail system. Moreover, to secure the real protection of the suspect and realize the equality principle of both parties, there should be the participation right for attorney to acknowledge reading and copying of investigation records in the investigative process and should extend the public defenders system more. Finally, to secure the suspect's human rights, I strongly insisted that the investigating authority which executed law must enhance the sense of the human rights with priority, rather than revise the above laws and improve or complement all kinds of systems.