SCJR’s ‘Pre-Search Warrant Interrogation’ Proposal Faces KBA Opposition: “Separation of Prosecution and Adjudication Undermined”

① Undermining the Separation of Prosecution and Adjudication
② Concerns Over Infringement of Fundamental Rights
③ Procedural Delays
④ Restrictions on Investigations
⑤ Issues of Fairness Raised

The Korean Bar Association has effectively expressed opposition to the introduction of the "pre-search warrant interrogation system," one of the core tasks of the Special Committee on Judicial Reform of the Democratic Party of Korea, stating that it "undermines the constitutional principle of separation between prosecution and adjudication."

On August 19, during the first public hearing of the special committee, the Korean Bar Association, which participated as a presenter, submitted a statement outlining five problems with the introduction of the pre-search warrant interrogation system: ① violation of the separation between prosecution and adjudication, ② concerns about infringement of basic rights, ③ procedural delays, ④ restrictions on investigations, and ⑤ issues of fairness. The association stated, "If the court interrogates those involved before issuing a search and seizure warrant, the court would, in effect, substantially intervene in the initiation and progress of the investigation from its earliest stages, raising concerns that judges could effectively become the leaders of investigations."

They also raised concerns about the efficiency of investigations. Search and seizure is a means to secure decisive evidence, but introducing a pre-interrogation procedure could potentially lead to the destruction of evidence. The association further pointed out that, since the decision to hold an interrogation would be left to the discretion of a judge in charge of warrants, the right to defense could be granted unequally to suspects, leading to fairness issues. Additionally, they noted that coordinating the schedule for pre-interrogations could significantly delay investigations, and the interrogation process itself could slow down both investigations and the issuance of warrants. Kim Juhyun, the Korean Bar Association’s Second Policy Director, who presented on behalf of the association, stated, "There needs to be prior discussion on concrete measures to ensure the secrecy, speed, and effectiveness of investigations."

However, opinions among legal professionals at the hearing were divided. Lim Jibong, a professor at Sogang University Law School, said, "When the substantive review system for arrest warrants was introduced in the 1990s, similar opposition was raised, but the system was eventually established," adding, "Judges must conduct thorough interrogations to prevent potential human rights violations."

The pre-search warrant interrogation system is a procedure that allows judges, when deemed necessary, to interrogate individuals who possess information relevant to the requirements for a search and seizure warrant before the warrant is issued. While the courts welcome this reform, investigative agencies are reluctant. It has been presented as one of the key tasks of the special committee, along with increasing the number of Supreme Court justices, making court rulings public, and improving the Supreme Court Chief Justice Candidate Recommendation Committee system.

Baek Hyeryeon, the Democratic Party lawmaker who chairs the special committee, stated, "We will take into account the concerns raised by the Korean Bar Association, gather public opinion, and coordinate the details," adding, "We aim to finalize the matter before the Chuseok holiday."

This content was produced with the assistance of AI translation services.