압수,수색의 합법성 기준 재검토

Since democratization, the reform of the Korean criminal procedure has strengthened the procedural rights of criminal suspects and defendants. The Korean judiciary has made progressive decisions for such rights. However, police practices of avoiding the warrant requirements for search-and-seizure have continued, and the Korean judiciary has consistently declined to exclude the physical evidence obtained by illegal search-and-seizure. Compared with the arrest and detention, police interrogation, the requirement of legitimate search-and-seizure has not been much scrutinized. This Article is to review critically the current search-and-seizure system in Korea. First, it analyzes the warrant requirement, focusing on required degree of probable cause, freshness of given information, particular description of the premises to be searched and the things to be seized, and reviews some issues regarding seizure of intermingled informant documents/computer devices and search-and-seizure of the press. Second, it examines the warrantless search-and-seizure exception in the Korean Criminal Procedure Code such as search-and-seizure incident to arrest on warrant, emergency arrest, arrest of flagrant offenders, detention on warrant, emergency search-and-seizure, and inspection on the spot of committed crimes. Then, it emphasizes on a respect for the sanctity and inviolability of the home, recognizes that any interference with the right must be reasonable and limited to the scope necessary to satisfy a legal purpose, rejects arbitrary and unlawful interference with privacy and unfettered discretion to search-and-seize, and requests legally enforceable safeguards regulating the use of police powers.