[2] Whether judicial police officers can contest the prosecutor's rejection order of warrant application (negative)

[3] The case dismissing the above quasi-appeal in a case where the judicial police officer requested quasi-appeal regarding the search and seizure warrant requested by a prosecutor without requesting a prosecutor to the court and directed the prosecutor to dismiss the application for a warrant

[2] Upon receipt of an application for a warrant of search and seizure from a judicial police officer, a prosecutor may determine whether to request a warrant to the court without being bound by the application, taking into account various circumstances, such as the content of the investigation carried out until that time, and whether to issue an order to supplement or dismiss a warrant without requesting the warrant to the court. A judicial police officer has a duty to obey the official direction, and it shall not be contested.

[3] The case dismissing the above quasi-appeal in a case where the judicial police officer requested quasi-appeal as to the search and seizure warrant requested by the prosecutor without requesting a prosecutor to the court and under the direction of dismissing the application for the warrant

A. Progress of the case

The Seoul East-gu Police Station investigated the case against the three persons including Nonindicted 1, etc., and applied for search and seizure against Nonindicted 2 twice through the Seoul Northern District Prosecutors' Office to request the Seoul Northern District Court for search and seizure warrant.

However, the prosecutor of the Seoul Northern District Prosecutors' Office directed all the above courts to dismiss the request for the warrant without requesting the above warrant.

B. Status of the appellant

The claimant shall be the judicial police officer belonging to the Dongdaemun Police Station that applied for the above warrant to the prosecutor.

C. The claimant's assertion

The Criminal Procedure Act provides that a search and seizure may be carried out (Article 215). The Criminal Procedure Act provides that a search and seizure may be carried out in the “where necessary for a criminal investigation” (Article 215). The term “the first suspicion of a crime that may be carried out in the course of a criminal investigation” refers to “the first suspicion of a crime that may be carried out in the course of a criminal investigation.” If there is such first suspicion, further search and seizure may be carried out in a way to find clear suspicion of a crime and evidence thereof. As for the present case, there is no lack to recognize the first suspicion of a crime that may be carried out for a search and seizure,

Although the Criminal Procedure Act focuses on the prosecutor's right to request a warrant, it does not allow the prosecutor to openly obstruct the investigation of police by arbitrarily requesting a warrant requested by the police to conceal a specific case or protect a specific person.

If there is a need to secure evidence because the suspicion of a crime is objectively doubtful, it is improper to arbitrarily demand a warrant requested by the police as the abuse of authority.

Article 417 of the Criminal Procedure Act provides that judicial police officers may request the court to correct errors in judgment of the prosecutor who did not request the warrant to the court, and seek to revoke the prosecutor's non-request for warrant (the prosecutor's order to dismiss the request for warrant) in accordance with the above provision.

2. Determination:

A. The purport that the provisions of the Criminal Procedure Act and the quasi-appeal system are established

(1) Rule

Article 417 (Quasi-Appeal: A person who is dissatisfied with a disposition taken by a public prosecutor or judicial police officer relating to confinement, seizure or return of seized articles may file a request for revocation or alteration of such disposition with the competent court in the place of execution of duties or court corresponding to the public prosecutor's office to

(2) The purport of establishing quasi-appeal system under Article 417 of the Criminal Procedure Act

Generally, any citizen who is subject to a disposition that is accompanied by an infringement of rights by an administrative agency exercising the public authority may file a petition with the court for remedy against such disposition by means of administrative litigation. Accordingly, any citizen whose rights are infringed by an administrative investigation agency’s criminal disposition, such as physical confinement, seizure, search, etc., which is the exercise of the public authority, may seek remedy by administrative litigation procedures. However, whether to recognize only the general administrative litigation procedures due to such remedy procedures, and whether to recognize special administrative litigation procedures is a matter of legislative policy. In this regard, our law permits special judicial remedy under the judgment that granting general administrative litigation procedures are very inappropriate for the necessity of prompt remedy. This is the quasi-appeal system under Article 417 of the Criminal Procedure Act. As a result, quasi-appeal under the Criminal Procedure Act has the nature of procedural administrative litigation.

B. The subject of quasi-appeal under Article 417 of the Criminal Procedure Act - Whether the judicial police officer is included in the quasi-appeal claimant

(1) Under the provisions of Article 417 of the Criminal Procedure Act, a claimant who is entitled to seek revocation or alteration of a disposition taken by a public prosecutor or a judicial police officer is a citizen who is subject to such disposition. The limitation of the claimant to the above scope is reasonable in view of the procedural nature of the administrative litigation under Article 417 of the Criminal Procedure Act, and as a result, a judicial police officer who exercises the right to investigate (the quasi-appeal of this case is limited to the quasi-appeal of this case in the position of a judicial police officer who exercises the right to investigate as an individual but is not an individual) cannot be the

(2) Article 27(1) of the Constitution of the Republic of Korea provides that “All citizens shall have the right to a trial by law.” Thus, the right to a trial shall be recognized as prescribed by law. However, whether judicial police officers, who assist criminal investigation, shall guarantee a prosecutor’s right to a trial to appeal a prosecutor’s official command in relation to criminal investigation, or not, if guaranteed, to the extent that it depends on legislative policy (see Supreme Court Order 2006Mo646, Dec. 18, 2006). In addition, the current law does not provide any provision that can object to a trial. Moreover, a judicial police officer, who is in the position of exercising the authority as a power exercise institution, cannot be the subject of fundamental rights that enjoy the constitutional right to a trial, etc. (the authority recognized to a judicial police officer is limited to the authority of the exercise institution of public authority and it cannot be deemed as a fundamental right).

C. Whether quasi-appeal under Article 417 of the Criminal Procedure Act - Judicial Police Officers can contest against the prosecutor's rejection order of warrant application

Article 215 of the Criminal Procedure Act provides that "a public prosecutor may conduct search, seizure or inspection according to a warrant issued by a judge of the competent district court upon request by the public prosecutor, if necessary for the investigation of crimes" under Paragraph (1) of the same Article, and Paragraph (2) of the same Article provides that "a judicial police officer may conduct search, seizure or inspection according to a warrant issued by a judge of the competent district court upon request by the public prosecutor, if necessary for the investigation of crimes (Article 201 provides the same purport as the detention)." Thus, if a public prosecutor instructs a judge of the competent district court to request a warrant of search and seizure as bound by a warrant of search and seizure which is requested as necessary for the investigation of crimes by a judicial police officer, or to dismiss the request without requesting a warrant of search and seizure, a judicial police officer may contest against it as quasi-appeal. The request in this case also appears to have asserted that quasi-appeal against the direction to dismiss the request of a public prosecutor.

(1) Whether the disposition is made - Whether the prosecutor’s direction that dismissed the application for a warrant by a judicial police officer constitutes a disposition under Article 417 of the Criminal Procedure Act.

First, this article examines whether the prosecutor's direction to dismiss the application for a search and seizure warrant is a disposition.

In relation to the concept of disposition, the Criminal Procedure Act does not have any provision, and as Article 417 of the Criminal Procedure Act has the nature of administrative litigation, it is necessary to invoke the relevant provisions and interpretation of the Administrative Litigation Act.

Article 2(1)1 of the Administrative Litigation Act provides, “The exercise or refusal of public authority as an enforcement of law with respect to a specific fact by an administrative agency, and other similar administrative actions,” and Article 3 of the Administrative Litigation Act provides, “the action of revocation, which is an administrative agency’s action, is filed against a disposition, etc.,” and Article 4 of the Administrative Litigation Act provides, “the action of revocation or alteration of an illegal disposition, etc. by an administrative agency, etc.,” as a type of “appeal.” According to these provisions, a disposition subject to appeal under Article 417 of the Criminal Procedure Act, which is an act of an administrative agency, is an act under public law, such as ordering the establishment of a right or an obligation under laws and regulations, or giving rise to other legal effects, causing direct changes to the specific rights and obligations of the public (see, e.g., Supreme Court Decisions 96Nu433, Mar. 22, 196; 201Du2799, Dec. 27, 2002).

However, the prosecutor's direction of dismissing an application for a search and seizure warrant by a judicial police officer is merely an act inside an administrative organization, and does not constitute an act that directly changes the rights and duties of a suspect or a defendant subject to investigation (the petitioner shall not accept the claim that the disposition is made to the extent that the victim of the relevant case is in violation of the interest to relieve the damage by identifying the victim of the relevant case).

Therefore, the prosecutor's direction that dismissed the request for warrant by a judicial police officer does not constitute a disposition under Article 417 of the Criminal Procedure Act.

(2) ADDDIER - Command - Heading/ Heading

The Government Organization Act, the purpose of which is to establish the outline of the establishment, organization, and scope of duties of national administrative agencies in order to perform the affairs of administrative authority (Article 66(4) of the Constitution) belonging to the government accompanying the President systematically and efficiently, shall have the public prosecutor's office under the jurisdiction of the Minister of Justice to take charge of the affairs of law, such as prosecutor's office, and shall have the National Police Agency under the jurisdiction of the Minister of Government Administration and Home Affairs to take charge of the affairs of prosecutor's office (Article 32) and the affairs of public security (Article 34(4)).

In addition, Article 4 of the Public Prosecutor's Office Act provides that "criminal investigation" shall be the affairs of the public prosecutor, and Article 3 of the Police Act provides that "investigation" shall be the police's duties (Article 2 (1) of the Act on the Performance of Duties by Police Officers shall be referred to as the duty of the police's duties). In relation to the scope of exercise of authority among them, the Public Prosecutor's Office Act provides that "the direction and supervision of judicial police officers with respect to criminal investigation" shall also be the affairs of the public prosecutor (Article 4 (1) 2).

Therefore, Article 53 of the Prosecutor’s Office Act provides that “Judicial Police Officers shall obey an order issued by the competent prosecutor in the course of a criminal investigation,” and Article 2(1) of the same Act provides that “The Rules on the Business of Judicial Police Officers, which are the Ordinance of the Ministry of Justice, enacted with the aim of specifying the general rules on the duty free of charge concerning a criminal investigation to a judicial police official, shall be the same as “the duties of a judicial police official,” provides that “The judicial police official shall investigate a crime under the direction of the prosecutor.”

In addition, Article 195 of the Criminal Procedure Act provides that "a prosecutor shall investigate a criminal, a criminal fact and evidence when he/she believes that a criminal is suspected of committing an offense", and Article 196 of the Criminal Procedure Act provides that "a judicial police officer shall conduct an investigation under the direction of a prosecutor."

In full view of these provisions, our legislators designate a prosecutor as the subject of investigation and a judicial police officer as the assistant of investigation with regard to the division of authority between a prosecutor and a judicial police officer with respect to a criminal investigation. As a result, a judicial police officer can not investigate a crime independently, i.e., a prosecutor, to the extent that he/she complies with an official order.

Therefore, a prosecutor who receives an application for a warrant of search and seizure from a judicial police officer can determine whether to request a warrant from the court in consideration of various circumstances, such as the content of the investigation that took place until that time, etc., and whether to issue an order to supplement or dismiss a warrant without requesting a warrant from the court. A judicial police officer is obligated to obey an official order and shall not contest such order (except as it is directly related to the foregoing rules, if a judicial police officer applies for the issuance of a warrant of arrest, detention, search, seizure, or verification on the same criminal facts in any of the following cases, he/she shall report the purport thereof to the prosecutor, and Article 52(4) and 53 of the same Act provides that “When a prosecutor makes an application for a warrant of search and seizure but fails to have been issued, the judicial police officer shall, without delay, take the direction from the owner, etc. of the seized property to return the seized property, etc.” (see, e.g., Articles 52(4) and 53 of the same Act).

3. Conclusion

Thus, there is no reason for the quasi-appeal in this case, which is based on the premise that the judicial police officer has the right to demand a quasi-appeal under Article 417 of the Criminal Procedure Act, and that the prosecutor can seek a revocation of the direction by the prosecutor (it is not necessary to determine the legitimacy of the prosecutor's order

It is so decided as per the Disposition for above reasons.

Judges Kim Yong-dae