Whether Article 200-2 of the former Criminal Procedure Act (amended by Act No. 200-2), among Article 216(1)1 of the same Act, applies to cases where the Constitutional Court rendered a ruling of inconsistency with the Constitution (amended by Act No. 200-2) and rendered a ruling of inconsistency with the Constitution to continue application to a certain time, and where there is no urgent need to arrest a suspect by searching another person’s residence, etc. without a warrant of inconsistency with the Constitution (negative)

(A) 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 arrests or detains a suspect pursuant to Article 200-2 (Arrest under Warrant), 200-3 (Emergency Arrest), 201 (Detention), or 212 (Arrest of Flagrant Offender),” and Article 216(1)1 of the former Criminal Procedure Act provides that “the investigation of a suspect in the dwelling of another person or in the dwelling of another person, or in the dwelling, building, airplane, vessel, or vehicle of another person.”

In the en banc Decision 2015Hun-Ba370, 2016Hun-Ga7, Apr. 26, 2018, the Constitutional Court declared that Article 200-2 of the above Article 216(1)1 of the former Act (hereinafter “former Act”) stipulates that a suspect against whom a warrant of arrest has been issued may search another person’s residence, etc., 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 may search a suspect without a warrant. Furthermore, in cases where a simple decision of unconstitutionality as to Article 16 of the former Act loses its validity and an urgent need to arrest a suspect upon search of another person’s residence, etc. without a warrant, even if it becomes necessary to immediately arrest the suspect, the Constitutional Court declared that the provision of the former Act is inconsistent with the Constitution on the grounds that the legal grounds for permitting the arrest occur, and the amendment of the former Act remains effective until March 31, 2020 (hereinafter “the Constitution”).

According to the unconstitutionality of the provisions of the former Act and the provisional application of the Constitutional Court's decision of inconsistency with the Constitution as to the provisions of the former Act, it is necessary to allow the Constitutional Court to continue to apply the provisions of the former Act even though the Constitutional Court confirmed the unconstitutionality of the provisions of the former Act, if there is an urgent need to search another person's residence without a search and seizure warrant and arrest a suspect. Therefore, the provision of the former Act is interpreted as violating the warrant requirement, and it is deemed that there was a situation of suspension of application prior to the enforcement of the amended Act.

(B) Article 216(1)1 of the Criminal Procedure Act amended in accordance with the decision of inconsistency with the Constitution added the proviso of Article 216(1)1 to “a criminal suspect’s investigation” to “a criminal suspect’s search” (Article 200-2 or 201). However, the Addenda does not have any provision regarding retroactive application.

As long as the Constitutional Court has decided to render a ruling of inconsistency with the Constitution as to a certain provision of the law and delegates the legislative authority to the legislative authority to revise or abolish the provision of the law in a constitutional manner, the retroactive application of the amended provision and the scope of retroactive application, in principle, depends on the legislative discretion. However, considering the purport of the ruling of inconsistency with the Constitution as to the provision of the former Act or the specific normative control of the judgment of inconsistency with the Constitution, at least the point of issue is whether the provision of the former Act is unconstitutional or not and the case pending in the court as at the time of the ruling of inconsistency with the Constitution, the retroactive effect of the ruling of inconsistency with the Constitution as to the relevant provision of the former Act shall be affected. Thus, even if the transitional measure is not taken with respect to the retroactive application of the Addenda to the current Criminal Procedure Act, the provisions of the former

Article 16 of the Constitution of the Republic of Korea; Article 216(1)1 of the former Criminal Procedure Act (Amended by Act No. 16850, Dec. 31, 2019); Articles 200-2 and 216(1)1 of the Criminal Procedure Act; Addenda (Amended by Act No. 16850, Dec. 31, 2019)

Supreme Court en banc Decision 2008Du18885 Decided September 29, 201 (Gong2011Ha, 2234) en banc Decision 2015HunBa370, 2016Hun-Ga7 Decided April 26, 2018 (Hun-Ga259, 687)

Defendant

Prosecutor

Law Firm Ton Law Firm, Attorneys Du-seop et al.

Seoul High Court Decision 2015No655 decided August 8, 2018

The appeal is dismissed.

The grounds of appeal are examined.

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 under 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 en banc Decision 2015Hun-Ba370, 2016Hun-Ga7, Apr. 26, 2018, the Constitutional Court declared that Article 200-2 of the above Article 216(1)1 of the former Act (hereinafter “former Act”) stipulates that a suspect against whom a warrant of arrest has been issued may search another person’s residence, etc., 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 may search a suspect without a warrant. Furthermore, in cases where a simple decision of unconstitutionality as to Article 16 of the former Act loses its validity and an urgent need to arrest a suspect upon search of another person’s residence, etc. without a warrant, even if it becomes necessary to immediately arrest the suspect, the Constitutional Court declared that the provision of the former Act is inconsistent with the Constitution, and the amendment of the former Act shall continue to apply until March 31, 202 (hereinafter “the amendment”).

According to the unconstitutionality of the provisions of the former Act and the grounds for provisional application of the unconstitutionality ruling of inconsistency with the Constitution as to the provisions of the former Act, it is necessary to allow the Constitutional Court to continue to apply the provisions of the former Act even though the Constitutional Court confirmed the unconstitutionality of the provisions of the former Act, if there is an urgent need to search another person’s residence without a search and seizure warrant to arrest a suspect. Therefore, the provision of the former Act provides that “Where there is no urgent need to search another person’s residence without a search and seizure warrant and arrest a suspect,” the provision of the former Act provides that “where there is no urgent need to search another person’s residence without

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 inconsistency with the Constitution of the Republic of Korea added the proviso of Article 216(1)1 to “a criminal suspect’s investigation” to “a criminal suspect’s search.” However, the Addenda does not have any provision regarding retroactive application.

B. As long as the Constitutional Court makes a decision of inconsistency with the Constitution as to a certain legal provision and imposes the legislative discretion on the legislative body’s discretion to revise or abolish the legal provision in a constitutional manner, the legislative amendment and the scope of retroactive application depends on the legislative discretion in principle. However, considering the purport of the decision of inconsistency with the Constitution as to the provision of the former Act or the guarantee of the effectiveness of specific norm control in the adjudication of inconsistency with the Constitution as to the provision of the former Act, at least the relevant case becomes a decision of inconsistency with the Constitution as to the relevant provision of the former Act and the case pending in the court as to whether the provision of the former Act has become unconstitutional or not at least at the time of the decision of inconsistency with the Constitution as to the relevant case, the retroactive effect of the decision of inconsistency with the Constitution as to the previous provisions of the Criminal Procedure Act is not applicable even if there is no transitional measure as to retroactive application, and the provisions of the former Criminal Procedure Act to which the unconstitutionality has been removed (see, e.g., Supreme Court Decision 2008Du18855

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 indicated in its reasoning, the lower court determined that the instant search warrant was dismissed on the ground that the police officer’s duty was to discover the subject of the instant search warrant; ① Nonindicted Party 2 did not request the instant search warrant from the Seoul Western District Court for the search and seizure of the instant building on the ground that Nonindicted Party 3 did not have any sufficient time to obtain the warrant until December 20, 2013, prior to the enforcement date of the warrant of arrest (as of December 22, 2013, around 09:39), Nonindicted Party 2 was not subject to the instant search and seizure; ② Nonindicted Party 3 was sufficiently able to obtain the warrant of arrest from the Seoul Western District Court on the ground that Nonindicted Party 4 had no time to request the search and seizure of the instant building on the ground that Nonindicted Party 2 had no time to request the search and seizure of the instant building on the ground that it was difficult to obtain the warrant of arrest from the police officer on the ground that Nonindicted Party 2 had no time to request the search and seizure of the instant building on the ground that Nonindicted Party 2 had no time been available.

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 Kim Jae-hyung (Presiding Justice)