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A Study on the Requirements of the Urgent Arrest - Supreme Court Decision on October 13, 2016, Case No. 2016Do5814 -

  • DONG-A LAW REVIEW
  • 2017, (75), pp.87-117
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law
  • Received : April 12, 2017
  • Accepted : May 24, 2017
  • Published : May 31, 2017

KIM MIRA 1

1부산대학교

Accredited

ABSTRACT

A police officer received a report that “a habitual drug criminal takes narcotic drug again right after he was released from the prison”; he went to near the suspect's house and photographed the scene that he is smoking a cigarette; and the police officer called the suspect and asked where he is after he confirmed that he is same as the suspect by the informer, but the suspect lied that he is not in his house, so the police officer forcibly unlocked the locking device, and he urgently arrested the suspect by getting into the house. According to the above case, the supreme court stated that “his identification, residence, and telephone number are already grasped, and the evidence of drug taking would not be perished, and it was enough time given to get an arrest warrant in advance.”, and judged that it did not qualify the condition of the urgent arrest. (Supreme Court Decision on October 13, 2016, Case No. 2016Do5814) However, if integrating the fact that criminal record and relationship on his release from prison of the detail of the report and actual suspect are conformed and the fact that the suspect hid where he is by lying to the police's call, it is appropriate that the reciprocality of suspicion for the arrest is qualified. Also, since he has a lot of same criminal record, the suspect who is considerably knowledgable about the investigation method of drug criminal highly possibly can destroy evidences, and he has a repeated crime so that it is expected to be sentenced heavy penalty, so there is a lot of concern of escape, it is judged that the necessity of arrest is qualified. Since the police officer does not know about the accurate time that the suspect took drug, it is hard to tell that it is unreasonable that there was no enough time to get an arrest warrant. Also, it is difficult to tell that such a judgment is remarkably out of experience rule. Thus, since the urgent arrest of this case qualified the requirement, it may be called an appropriate arrest. Intention of the supreme court that tries to strictly permit the urgent arrest that may possibly violate human rights as much as it can is understandable, but the reasonable decision of investigation institution should not be neglected by highlighting only the human rights of the suspect. In terms of this, the above ruling must be criticized.

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