[2] Whether a judge of the district court is subject to appeal or quasi-appeal regarding the prosecutor's request for warrant of arrest or detention warrant (negative)

[3] Whether it is in violation of the Constitution to allow a direct appeal or quasi-appeal against the trial itself on the request for arrest warrant or detention warrant (negative)

[2] The judgment by a judge of the district court on the request for a warrant of arrest or detention by a public prosecutor does not fall under the "decision by the court" which is subject to appeal under Article 402 of the Criminal Procedure Act, but does not fall under the "judgment on detention, etc. by the presiding judge or a commissioned judge" which is subject to quasi-appeal under Article 416 (1)

[3] The provisions of Article 12(1), (3), and (6) of the Constitution of the Republic of Korea and Articles 37, 200-2, 201, 214-2, 402, and 416(1) of the Criminal Procedure Act are as follows: (a) infringement of fundamental rights relating to physical freedom can only be caused by an unfair detention, etc.; (b) there is no direct infringement of fundamental rights arising therefrom if a prosecutor’s request for a warrant is rejected; and (c) if a prosecutor grants a request for a warrant of arrest or detention to the trial itself as to the suspect’s request for a warrant of arrest or detention, the decision would be likely to cause unstable status of the suspect as soon as possible, taking into account the fact that it is desirable to promptly determine the legal relationship related thereto; (d) direct appeal or quasi-appeal against the judgment on the warrant of arrest or detention itself, instead of allowing it to be permitted; (e) where a warrant of arrest or detention has been issued, it can only be allowed to make a request for a new warrant by the legislators’s.

1. In light of the provisions of Article 27 of the Constitution and Article 101(2) of the Constitution that guarantee the right to a prompt trial by a judge who is provided by the Constitution and the Act as one of the fundamental rights of the people, and Article 101(2) of the Constitution that provides for the Supreme Court as the highest court the final review right of the Supreme Court on orders, rules or dispositions, it is a way to guarantee the citizens' right to a trial in a case where a wrong trial has been rendered by a court other than the Supreme Court, it would be a way to ensure the citizens' right to a trial. However, the court system is one means to guarantee the citizens' right to a trial in a case where a trial is rendered by a court than the Supreme Court. However, since the court system comes to the question of how to harmonize two different requests such as reasonable distribution of legal discovered resources with the appropriateness and speediness of a trial at the same time with regard to the protection of rights by the judiciary, it is a matter that belongs to the freedom to form the legislator or what method of appeal should be permitted to a prosecutor in the legislative or criminal procedure (see Constitutional Court Decision 90HunBa1, etc.

2. Article 12(1) of the Constitution of the Republic of Korea provides, “All citizens shall enjoy physical freedom. No person shall be arrested, detained, seized, searched, or interrogated unless otherwise provided by Acts.” The main text of Article 12(3) provides that “a warrant issued by a judge upon the request of a prosecutor shall be presented in accordance with lawful procedures in the case of arrest, detention, search, seizure, or search,” and stipulates, “Article 12(6) provides, “Any person who is arrested or detained shall have the right to request a court to review the legality of the arrest or detention,” thereby ensuring that the review of the legality of the arrest or detention is one of the relief of the detained or the methods of appeal by the warrant duly issued, but it is silent without any provision on the methods of appeal when the arrest or detention warrant, etc. requested by a prosecutor is rejected by a judge.”

In Articles 20-2 and 201 of the Criminal Procedure Act, the arrest or detention of the suspect at the investigation stage may be made by a warrant of arrest or detention issued by a judge of the district court upon the request of the public prosecutor. A judge of the district court who has received such request shall issue a warrant of arrest or detention if he deems it reasonable. In the case of failure to issue it, the public prosecutor shall enter the purport and reasons in the request and deliver a signature and seal to the public prosecutor who has made the request. In the case of a request for the warrant of arrest or detention, the public prosecutor shall enter the purport and reasons of the request again in the case of a request for the warrant of arrest or detention, and shall enter the purport and reasons of the request again in the case of a request for the warrant of arrest or detention. However, there is no provision that the public prosecutor may re-request the warrant of arrest or detention, but Article 214-2 of the Criminal Procedure Act does not provide that the suspect, etc. who has been arrested or detained under the warrant of arrest or detention may appeal to the competent court.

3. Meanwhile, the main text of Article 402 of the Criminal Procedure Act provides, “Any person who is dissatisfied with the court’s decision may file an appeal,” and Article 416(1) provides, “In the event that a presiding judge or a commissioned judge notifies the court of any of the following trials, he/she may file a petition for cancellation or alteration of the court’s decision with the court to which the judge belongs,” and Article 402 Subparag. 2 provides, “A judgment on confinement”.

However, Article 37 of the Criminal Procedure Act provides for the types of trials by dividing them into “judgment”, “decision”, and “order”, while strictly classifying them into “court”, “court collegiate panel of a court”, “judicial judge”, “judicial judge”, “commissioned Judge”, “commissioned Judge”, “commissioned Judge”, and “judicial judge”, according to the type and nature of judgment. As seen earlier, the Criminal Procedure Act provides for the public prosecutor’s request for arrest warrant or detention warrant to proceed with a trial as to whether it has been issued.

In full view of these provisions, it is clear that a judge of the district court's judgment on the prosecutor's request for arrest warrant or detention warrant does not fall under "decision of the court" which is subject to appeal under Article 402 of the Criminal Procedure Act, but does not fall under "judgment on detention, etc. of the presiding judge or commissioned judge" which is subject to quasi-appeal under Article 416 (1) of the same Act (see Supreme Court Order 4290Mo517, Mar. 14, 1958; Supreme Court Order 2004Mo517, Mar. 31, 2005, etc.).

4. The above provisions of the Constitution and the Criminal Procedure Act stipulate that the infringement of fundamental rights related to the freedom of body may arise only by unfair arrest, etc., and if the prosecutor's request for a warrant is dismissed, there is no possibility of direct infringement of fundamental rights thereby, and if the prosecutor's appeal or quasi-appeal is permitted against the trial itself as to the request for a warrant of arrest or of detention, the validity of the trial would be in a flexible state, and the status of the suspect would be unstable as soon as possible. Thus, it is desirable to establish relevant legal relations as possible, instead of allowing the appeal or quasi-appeal against the trial itself on the warrant of arrest or detention, it is desirable to allow the prosecutor to file a request for the review of the legality of arrest or detention against the suspect where the warrant of arrest or detention is issued, and the request for the warrant is dismissed, the purport is to open a way to appeal in an indirect way. In light of the above legal principles, this is only a reasonable decision made within the scope of the legislative freedom as a result of the reservation of laws in accordance with the Constitution.

5. Examining the above legal principles and records, the court below is just in rejecting the prosecutor's application (quasi-appeal) seeking modification of the judgment dismissing the warrant of this case on the grounds that no appeal or quasi-appeal is allowed against the judgment dismissing the warrant of this case after recognizing the facts as stated in its reasoning. There is no violation of the Constitution, law, order, or rule that affected the judgment, as alleged in the grounds for reappeal.

In addition, as long as the judgment of the court below is justified, the argument that the judge of the district court dismissed the prosecutor's request for detention warrant of this case cannot be a legitimate ground for reappeal.

6. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)