Empirical and comparative law analysis of foreign warrant appeal systems and case law, and proposal of amendments to Korea’s Criminal Procedure Law and Arrest Standard Review Board
Authors:   Wonkwang University Legal Research Institute has, Song Kwang Soub. 
Published: February 2023

There are broad deviations in the perspectives of stakeholders in the application and request for an arrest warrant, as well as other related processes, including the dismissal and issuance of the warrant. The deviations can be attributed to the imbalance of power between stakeholders, including the police’s dependence on the prosecution’s request for supplementary investigation for warrant application, return and request, internal conflict between the prosecution and the court due to the court’s power to dismiss or issue the arrest warrant requested by the prosecution and conflicting standards for arrest warrant applications. This is a consequence of the varying and ambiguous standards for applying, requesting and issuing a warrant.
In Korea, the conflict between the prosecution and the court over the request for warrants and dismissals have been ongoing over a long time, resulting in the aggravation and intensity of the people’s distrust in the judicial system.
As the grounds for arrest are abstract and ambiguous in the Criminal Procedure Law, it is unavoidable to depend on the judge’s arbitrary decision. In order to avoid this issue, appeals to the warrant judge’s decision should be allowed. However, precedents set by the Supreme Court and the position of appeal disapproval oppose such a proposal.
The major cause for such issues is the fact that a warrant judge is a case-accepting judge. Thus, to have an appeal or quasi-appeal, the judge is required to become a ‘court’ of Article 402, which is not applied to these circumstances. In the case of warrant dismissal, there is a system called the reapplication for warrant. If the appeal is allowed, the suspects’ unstable state will continue for a long time, which can seriously violate the suspects’ freedom and human rights.
However, in the interpretation of Clause 1 of Article 101 of the Constitution, and Clause 1 of Article 5 and Clause 4 of Article 7 of the Court Organization Act, a case-accepting judge as a single judge becomes a ‘court’ similar to that of a collegiate panel, so the warrant dismissal is not an order, but a decision. The reapplication for a warrant should not be considered as disobedience of a decision of dismissal. The reapplication for a warrant by reinforcing the reason for warrant request after dismissal does not prevent the warrant judge’s arbitrary judgment. The reapplication for a warrant with no limitation in time can cause greater anxiety in respect to the violation of freedom and human rights.
Based on statistical analysis, since the introduction of the arrest warrant examination system in 1997, the current total arrest warrant request rate in 2019 has decreased by 78%, and the warrants directly requested by prosecutors has also decreased by 70%. Despite the great decrease in the request for warrants, the warrant dismissal rate increased almost 30% in 2019, which was 4.6 times greater than in 1997. Even though this is caused by the consistent emphasis of guaranteeing suspects’ freedom and defense rights, the national risk of crime has relatively increased. In order to limit the warrant judges’ arbitrary judgment on the decision of warrant dismissal, the United States and United Kingdom, and the continental countries such as Germany, France and Japan are already operating the warrant appeal system.
Meanwhile, the partial revision of the Criminal Procedure Act in 2007 resulted in the prosecution and the court being conflicted over the warrant appeal system. After establishing the appeal system on the decision to dismiss a request for evidence preservation in Clause 4 of Article 184, proposed by the Presidential Commission on Judicial Reform, the discussion of the warrant appeal system was postponed.
This was approximately 14 years prior to today. Now, the discussion to introduce the warrant appeal system can no longer be postponed.