피고인의 구속사유에 관한 고찰 (A Study of a Requisite for the Detention of the Defendant in the Current Code of Criminal Procedure)

서지정보

· 발행기관 : 경희대학교 법학연구소
· 수록지 정보 : 경희법학 / 43권 / 3호 / 239 ~ 266페이지
· 저자명 : 정진섭

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.

* Professor, Kyung Hee University College of Law, Ph.D, Attorney.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.

영어초록

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.

* Professor, Kyung Hee University College of Law, Ph.D, Attorney.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.

참고자료

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