Case on the Restriction on Judge's Discretion in Releasing Defendants of Serious Crimes

[4 KCCR 853, 92Hun-Ka8, December 24, 1992]

A. Background of the Case

The Constitutional Court in this case ruled that, in light of the principle of arrest by warrant and due process of law under Article 12 Section 3 of the Constitution, the continuing effect of an arrest warrant must be determined by an independent judge's judgment and not be swayed by the opinion of the prosecutor. The Court then struck down Article 331 of the Criminal Procedure Act that maintained the effect of the arrest warrant even after acquittal if the prosecutor had demanded serious punishment on the defendant.

Article 331 of the Criminal Procedure Act (Act No. 341 enacted on September 23, 1954) provided that an arrest warrant lost its effect in event of acquittal, judicial exemption of prosecution, exemption from punishment, suspension of sentencing, suspension of punishment, dismissal of the prosecution, or sentence of a fine or minor fine. However, a proviso to the Article made an exception when the prosecutor had demanded a death penalty, a life sentence, or a sentence of imprisonment with or without labor for more than ten years. Therefore, in such cases, an acquittal in the first trial court and the appellate court could not set the accused free until it was upheld in the Supreme Court.

The defendants in this case were prosecuted for assault in robbery and special robbery, and the prosecutor demanded a sentence of imprisonment between seven and ten years. The trial court,sua sponte, requested constitutional review of the proviso of Article 331.

B. Summary of the Decision

The Constitutional Court struck down the proviso of Article 331 of the Criminal Procedure Act after examining the role of a judge in an arrest, as follows.

All people are guaranteed the right to bodily freedom. In the event that it is restricted, due process of law and the general rules of statutory reservation regarding restrictions on fundamental rights demand that the restriction be imposed to the minimum extent necessary. Therefore, a judge or the court, after having issued an arrest warrant, must cancel it,sua sponteor upon the party's

request, immediately at any stage of criminal procedure whenever they find that the causes of arrest did not exist or no longer exist.

The due process of law prescribed in Sections 1 and 3 of Article 12 of the Constitution is an independent constitutional principle. The related principle of arrest by warrant under Article 12 Section 3 of the Constitution implies that determination by a judge should apply not only to the question of whether to issue a warrant but also to whether its effect should be continued. Therefore, the proviso of Article 331 of the Criminal Procedure Act which makes the continuing validity of a warrant depend on a prosecutor's decision, violates the due process of law guaranteed under the Constitution.

A defendant once released on a judge's misjudgment, may become difficult to bring back into custody and under the criminal justice system despite the seriousness of his crime, and the legislative purpose of the proviso is to prevent such situations. However, Article 93 of the Criminal Procedure Act allows the prosecutor to appeal a judge's cancellation of a warrant immediately. Other provisions of the Act also allow the appeals court to re-arrest the defendant if necessary. In light of the existence of these provisions, the proviso in question violates the rule against excessive restriction.

C. Significanceof the Decisionand Aftermath of the Case

This decision benefited defendants that were living in captivity until the Supreme Court’s final decision even after they were acquitted or received suspension of punishment.

Thereafter, the Court reviewed Article 97 Section 3 of the Criminal Procedure Act that established a prosecutor's right to immediate appeal against a judge's decision to release a defendant on bail. Under the provision, the defendant was to be held in confinement for three days after a judge decided to release him on bail, during which the prosecutor could appeal the bail decision. If the prosecutor filed the appeal, he was detained until the appeal was resolved in his favor. Therefore, the provision gives precedence to the prosecutor between the judge's decision that the defendant need not be detained during the trial, and the prosecutor's objection to such decision. This violates the principle of arrest by warrant according to which an independent judge must decide whether to detain or continue detaining the defendant, and restricts the defendant's bodily freedom, violating due process of law and the rule against excessive restriction (93Hun-Ka2, December 23, 1993).

Thereafter, the National Assembly amended the Criminal Procedure Act by Act No. 5054 on December 29, 1995, and removed the part of Article 97 Section 3 on the prosecutor’s immediate appeal against a decision for release on bail, and the proviso of Article 331 that maintained the effect of an arrest warrant even after acquittal in cases where the prosecutor demanded a sentence of ten years or longer.