Constitutional Challenge Looms Over South Korea's Revised Criminal Procedure Law

South Korea is on the brink of implementing a revised criminal procedure law on October 2, but the legislation is reigniting constitutional debate. The core of the controversy lies in the new provisions that limit prosecutors' authority to independently request arrest, detention, and search warrants, mandating that such requests must first be initiated by judicial police.

The People Power Party has declared its intention to file a constitutional complaint, asserting that the revised law violates the constitution by infringing upon the prosecutor's constitutionally protected right to request warrants. This legal challenge suggests that even after the new system takes effect, its constitutionality will be scrutinized by the Constitutional Court.

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The constitutional provision for the prosecutor's warrant request right implicitly includes the ability to request warrants directly.

The amended law stipulates that prosecutors can only request warrants from a court if judicial police have submitted an application. The previous provision allowing prosecutors to directly request warrants without police involvement has been removed. This change is rooted in Article 12, Paragraph 3 of the constitution, which states that arrests, detentions, seizures, or searches must be conducted based on a warrant issued by a judge following lawful procedures and upon the prosecutor's request.

The Supreme Prosecutors' Office has argued that the constitutional provision for the prosecutor's warrant request right implicitly includes the ability to request warrants directly. They contend that preventing prosecutors from issuing warrants without police application effectively nullifies this constitutional right. Historically, the criminal procedure law initially allowed both police and prosecutors to request warrants, but it was revised in 1961 to centralize this power with prosecutors to curb potential abuses by the police. The constitution was amended in 1962 to explicitly include the prosecutor's role in warrant issuance.

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Preventing prosecutors from issuing warrants without police application effectively nullifies this constitutional right.