법원의 구속기간에 관한 연구 = Study on the court-mandated detention period in the Korean criminal justice system
저자
발행기관
학술지명
권호사항
발행연도
2023
작성언어
-주제어
자료형태
학술저널
수록면
1-404(404쪽)
제공처
According to the Korean Criminal Procedure Act, the period of court-mandated detention shall be two months, which may be renewed only twice by a court ruling for each trial level, each time extendible by two months, if continued detention is deemed necessary. However, it may be renewed up to three times if it is unavoidable and necessary for an appellate court to hold an additional hearing upon the request of a criminal defendant or a defense counsel for the examination of the evidence, the submission of a written statement to supplement the cause of appeal, or for any other reason. Other countries rarely have such laws imposing batch restrictions on the length of court-mandated detention periods based on trial levels in all criminal cases. In countries with advanced judicial systems, the detention period is mostly controlled by active utilization of the bail system without limit on the duration of the detention period, or limiting the period of pretrial detention before the trial begins.
The detention period limitation system in Korea was first introduced in the newly enacted criminal procedure law by the Korean lawmakers, who had suffered greatly from being detained for a prolonged period during the Japanese colonial period, in order to overcome the coercive investigations and distrust of the fledgling Korean criminal justice system through a speedy trial after the liberation from Japan. For about seventy years since then, such a system has played a role in promoting speedy trials and preventing defendants from being detained for extended periods. However, rapid social changes and developments in modern times are resulting in a variety of new crimes, and in light of these, there is a push for reinforcing oral hearings as the call for a court-oriented trial system is growing louder than ever. The fact of the matter is that the principle of intensive examination in a criminal trial is difficult to establish, and the detention period limitation system is revealing its own limits by making proper discoveries difficult to be carried out while having the effects of actually restricting defendants' rights to advocate for and defend themselves.
This report provides an overview of the detention and bail systems in Korea and examines the background for the implementation of the detention period limitation system. This report also investigates the detention and bail systems in the U.S., England, Germany, France, and Japan. The report then analyzes the status of the criminal trial operations in Korea through criminal justice statistical data and looks at the recent changes taking place in the criminal trial environment. Through surveys and personal interviews, the report investigates judges' and lawyers' perceptions of the actual criminal trial procedure and detention period limitation system. This report further explores the limits of the current detention period limitation system and then suggests plans for improvement to overcome these identified limitations.
According to statistics from criminal trials over the last ten years, both the prosecution and appeal rates of people in custody have decreased, and thus, trials without detention have expanded. However, the accused’s bail request rate remains low, and the bail rate in the first trial is gradually declining, indicating that the bail system as a whole is underutilized. With the push to establish a more trial-centric system for handling criminal cases, the average processing time for criminal cases has continued to rise, and due to the existence of the detention period limitation system, judicial resources have been allocated more on custodial cases, causing the average processing period for non-custodial cases to rise significantly.
According to the interviews with judges and lawyers on the issue of the detention period limitation, it appeared that general detention cases did not face many difficulties in completing trials within the limited detention period; however, it was much more difficult to complete trials within the allowed detention period for those cases fraught with many issues and requiring examination of a large number of witnesses. In those cases, the criminal court would release the accused on bail when the detention period was about to expire, and the court, in its desire and attempt to complete the hearing within the detention period, would often end up taking a passive and half-hearted approach to accepting the defendant's requests for evidence. A survey of judges and lawyers also revealed that the Criminal Procedure Act’s intensive examination was not being carried out in actual criminal trials, and both judges and lawyers agreed that the current detention period limitation system needs to be relaxed. To mitigate the intended negative effects of the detention period limitation, most judges preferred to extend the detention period to the maximum allowed. The preference of the lawyers for methods of maximum detention period extension and exceptional detention period extension was similar.
The current detention period limitation system in Korea shows its limits in that it can actually restrict diligent investigations of factual evidence and the defendants’ rights to attack and defend themselves once the trial commences. In order to conduct proper criminal trial procedures with flexibility that would be more fitting and accommodating for individual cases, it would be most desirable not to limit the period of detention after the trial commences in court. The reality, however, is that implementing intensive examination in criminal cases is quite difficult, and the average processing time of criminal cases is continuing to rise. Therefore, it would be more realistic and pragmatic to maintain the current detention period limitation system while easing its strictness and rigidity. This report recommends that the current detention period limit system be maintained while also proposing an amendment to the Criminal Procedure Act to implement plans to extend the maximum detention period for the first trial and appeal trial by up to a year for thoses cases with exceptional circumstances. This report further proposes implementing a conditional bail system when issuing detention warrants and bringing uniformity to those various release procedures. This report also includes plans for improving the efficiency of criminal trials.
There is no doubt that detentions must be conducted carefully because they not only cause individuals pain and suffering that is difficult to recover from, but they also have the real effects of greatly limiting the accused’s rights to attack and defend themselves during the investigation and trial. The detention period limitation has served as an effective means to prevent unreasonable prolongation of detention in the past, but its limits have now been clearly exposed. Therefore, in the interest of weighing the balance between the public interest of realizing the state’s right for punishment and the individuals’ interest in avoiding infringement on personal freedom, the time has come now to thoroughly evaluate the need to implement a more flexible detention period limitation system that fits the reality of our current criminal trials. It is time to think about introducing an alternative to the detention system and a release system to expand trials without detention.
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