Supreme Court: Maintaining 'Prosecutorial Direction' in Arrest and Search Warrant Clauses Is Legally Appropriate

▲ The Supreme Court of Korea

The Supreme Court has reportedly expressed its opinion that it is legally appropriate to maintain current provisions in the Criminal Procedure Act, following a proposed amendment that would change the term 'direction' by a prosecutor to 'request' regarding the execution of arrest and search and seizure warrants.

The National Court Administration (NCA) recently submitted its review of the proposed Criminal Procedure Act amendment, spearheaded by Representative Kim Han-kyu of the Democratic Party of Korea, to the National Assembly.

The amendment includes a revision that changes the existing clause, which states that "arrest warrants shall be executed by judicial police officers under the direction of a prosecutor," to replace 'direction of a prosecutor' with 'request of a prosecutor.'

In response, the NCA stated, "The execution of an arrest warrant issued by a court, as directed by a prosecutor, should be viewed not as 'investigative direction,' but as the 'execution of a court's judicial decision' carried out by the court where the case is pending." The agency added, "Therefore, it is legally appropriate to maintain the current provisions of the law."

The explanation is that since Article 460, Paragraph 1 of the Criminal Procedure Act designates the prosecutor as the authority responsible for directing the execution of judicial decisions, the prosecutor should also be the entity responsible for directing the execution of arrest warrants, which are a form of judicial decision.

The NCA further pointed out, "Under the current interpretation of the law, an arrest warrant issued by the court where the case is pending is considered a type of judicial decision, which allows for an ordinary appeal. Removing the prosecutor's authority to direct execution would imply that it is not a judicial decision." The agency added, "In such a case, it is necessary to further examine whether it is acceptable to exclude warrant-related decisions from the scope of appeals, thereby reducing the means of recourse available to the defendant."

Regarding the amendment to change 'prosecutorial direction' to 'prosecutorial request' for search and seizure warrants, the NCA stated, "The execution of a search and seizure warrant issued by the court where the case is pending is, like an arrest warrant, an execution of a judicial decision. Thus, it is appropriate to maintain the current law, and further review is required."

These contents were also included in separate Criminal Procedure Act amendments proposed by Representative Kim Yong-min of the Democratic Party of Korea and Representative Park Eun-jung of the Rebuilding Korea Party.

Both bills contain provisions to abolish the prosecution's investigative powers while retaining only the right to request supplementary investigations, abolish the prosecution's authority to direct special judicial police officers, and restrict the prosecution's ability to directly request warrants.

Regarding these broader changes, the NCA stated, "These are matters concerning the adjustment of authority between investigative agencies, which should be decided through sufficient deliberation and legislative policy." However, it added, "Sufficient supplementary measures must be prepared to prevent potential side effects that may arise from such institutional changes."

(Photo: Yonhap News)

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