B. Special obstruction of performance

1. The ruling of inconsistency with the Constitution and the scope of provisional application

Article 216 (1) of the former Criminal Procedure Act (amended by Act No. 16850, Dec. 31, 2019) provides that "a public prosecutor or judicial police officer may, if necessary, take the following measures without a warrant where he/she arrests or detains a suspect in accordance with Article 200-2 (Arrest by Warrant), 200-3 (Emergency Arrest), 201 (Detention) or 212 (Arrest of Flagrant Offender)," and subparagraph 1 of the same Article provides that "the investigation of a suspect on the other person's dwelling or on the other person's house, building, aircraft, or vehicle."

In the Constitutional Court Decision 2015Hun-Ba370, 2016Hun-Ga7, Apr. 26, 2018, Article 200-2 of the above Article 216(1)1 of the former Act (hereinafter referred to as the "former Act") provides that a suspect against whom a warrant of arrest has been issued may search another person's residence, etc. without a warrant, even in cases where there is no urgent circumstance where it is difficult to obtain a warrant prior to the search, and thus, he/she is allowed to search a suspect without a warrant. Furthermore, if a simple decision of unconstitutionality as to Article 16 of the former Act becomes null and void and void immediately after the mere decision of unconstitutionality becomes void, the Constitutional Court declared that it is inconsistent with the Constitution on the grounds that there is an urgent need to arrest a suspect by searching another person's residence, etc. without a warrant, and the provisions of the former Act continue to apply until March 31, 2020 (hereinafter referred to as "the legislative amendment").

According to the unconstitutionality of the provisions of the former Act, which appear in the decision of inconsistency with the Constitution, and the reason for provisional application of the provisions of the former Act, it is necessary to allow the Constitutional Court to continue application of the provisions of the former Act to a certain time despite its confirmation of the unconstitutionality of the provisions of the former Act, if there is an urgent need to arrest a suspect by searching another person's residence without a search and seizure warrant pursuant to the provisions of the former Act. Therefore, in the interpretation of the provisions of the former Act, the part of the "where there is no urgent need to arrest a suspect by searching another person's residence without a search and seizure warrant" is in violation of the warrant requirement, and it should

2. Amendment of the Criminal Procedure Act and retroactive effect of inconsistency with the Constitution

A. Article 216(1)1 of the Criminal Procedure Act amended in accordance with the decision of non-conformity with the Constitution of the Republic of Korea added the proviso of Article 216(1) to "a suspect's search" and added to "a suspect's search where a suspect is arrested or detained pursuant to Article 200-2 or 201 shall be conducted only when there is an urgent circumstance in which it is impracticable to issue a search warrant in advance." However, the Addenda does not have any provision regarding retroactive application.

B. As long as the Constitutional Court has rendered a ruling of inconsistency with the Constitution as to a certain legal provision and imposes a legislative person the duty to revise or abolish such legal provision constitutionally at the discretion of the legislator, whether to apply the improvement legislation retroactively and the scope of retroactive application depends on the discretion of the legislator in principle.

However, considering the purport of the decision of inconsistency with the Constitution as to the provisions of the former Act or the specific norm control effectiveness of the judgment of inconsistency with the Constitution as to the pertinent case where the decision of inconsistency with the Constitution is rendered and where the provisions of the former Act are unconstitutional at the time of the decision of inconsistency with the Constitution as to the pertinent case and the case where the court is pending before the court, the decision of inconsistency with the Constitution as to the provisions of the former Act shall be deemed to have a retroactive effect on the instant case. Thus, even if the transitional measures are not taken with respect to retroactive application under the Addenda to the current Criminal Procedure Act, the provisions of the former Act cannot be applied as they are, and the provisions of the current Criminal Procedure Act where the unconstitutionality is removed shall be applied (see, e.g.

3. Determination as to the instant case

A. According to the records, the defendant applied for an adjudication of unconstitutionality on the provision of the former Act to the court below, accepted it by the court below, made a request for adjudication of unconstitutionality, and as a result, the Constitutional Court rendered a ruling of unconstitutionality to the Constitutional Court. As such, the pertinent provision of the current Criminal Procedure Act shall apply to this case as a case. Therefore, if a suspect is arrested under a warrant of arrest, it is possible only when there is an urgent circumstance where it is difficult to issue a warrant of search in advance.

B. As stated in its reasoning, the lower court determined that the instant search warrant was rejected on the grounds that the police officer’s duty was to search the building of ○○○ newspaper (hereinafter referred to as “instant building”) which is another person to find the subject of the instant search warrant; ① the prosecutor’s act was to have determined, around December 20, 2013, before the enforcement date of the warrant of arrest (round December 22, 2013, at the Seoul Western District Court, “the entire office of 13-15th floor in the instant building, office, warehouse, toilet, etc.” as the search site of 13-15th floor in the instant building, but the request for the search warrant was not made on the grounds that Nonindicted Party 2 was insufficient to explain the reasonableness of the search and seizure and the necessity thereof; ② Nonindicted Party 1 was not present at the police station’s time to obtain the warrant of arrest of the instant building (from December 16, 2013, at the time when the request for the warrant of arrest was rejected).

C. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the search of suspects for the enforcement of arrest warrant, etc., or by failing to exhaust all necessary deliberations

4. Conclusion

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

Justices Ansan-chul

Justices Noh Jeong-hee

Justices Lee Dong-gu