구속사유의 실무상 문제점 및 헌법합치적 해석 방안

초록

Criminal procedure reveals a significant disjunction between legal theory and investigative practice. While the Constitution guarantees personal liberty(Article 12) and prescribes the presumption of innocence{Article 27(4)}, and the Criminal Procedure Act codifies both the presumption of innocence(Article 275-2) and the principle of investigation without detention {Article 198(1)}, practice continues to operate under a detention-oriented paradigm that often amounts to a de facto presumption of guilt. Detention has been treated not only as a means of ensuring retribution or prevention, but also as a tool for expediting case resolution and even as an index of investigative performance. Yet criminal procedure cannot be reduced to the discovery of substantive truth alone; it must operate within the constitutional limits of due process. Because detention constitutes the most severe form of coercive measure restricting fundamental rights, the grounds for detention must be interpreted narrowly and rigorously under the principles of warrant requirement and proportionality. “Risk of destruction of evidence” and “risk of flight” under Article 70 of the Act must be established on concrete and rational grounds, while “risk of recidivism” and “seriousness of the offense” should not function as disguised grounds for detention. Ultimately, the operation of detention in criminal procedure is not merely a statutory matter but a constitutional one. Where ambiguity exists, courts must adopt interpretations consistent with the protection of defense rights, reaffirming that criminal procedure should function as a safeguard of liberty rather than as an instrument of convenience.

키워드