The biggest change in the Criminal Procedure Act under the current
government is the "the adjustment of investigation rights between prosecutor and
police" that has paid off to some extent in 2020. Through this, the Republic
of Korea has faced a major change in criminal procedures, especially in the
investigation phase, which is expected to have a significant impact on the arrest
and detention of the person in the investigation phase. In addition, the
international community's past comments on Korea's human restraint system are
still valid today. To sum up this, a fundamental review of criminal procedures,
especially the arrest and detention system, is needed at this point in the
investigation stage.

Looking at the arrest and detention system at the investigation stage from the
macro perspective of the human restraint system, the current criminal procedure
law takes the form of arrest and detention dualization, especially in the form
of strengthened arrest system. This can be seen as going against the global trend,
rather, the arrest and detention system should move toward unification in order
to strengthen the human rights security of the people. What this means is the
unification of arrest and detention, and further the integration of the detention
by the judicial police and the detention by the prosecutor.

The unification of arrest and detention specifically means the reduction of
the arrest system, which leads to the abolition of the arrest system by warrant
and the strengthening or substantiation of the requirements and procedures for
emergency arrest and current criminal arrest.

Emergency arrest shall be changed as follows: From a one-sided perspective
on arrest and detention, bail should also be strengthened to the level of the
defendant's bail for the suspect who was arrested urgently. In addition, if an
investigative agency urgently warrants an arrest warrant, the court should not
only examine the issue of future detention warrants, but also examine the legality
and substantiality of past arrest warrants, and reject the issue of detention
warrants if either is not recognized. Furthermore, the post-arrest warrant system
needs to be recognized as a post-judicial control measure of emergency arrest,
but in this case, the post-arrest warrant can only be recognized if it is released
without an arrest warrant. Finally, regarding the time limit of a warrant claim,
the normative element "immediate" and the absolute deadline of "48 hours" can
be set, for example, a warrant request by an investigative agency should be
considered absolutely invalid if it is not over 48 hours. Even if it is not more
than 48 hours, it can be considered a violation of the relevant regulations if
the warrant is delayed without a reasonable or substantial reason.

In criminal proceedings, the subject of arrest should be the court, whether
before or after the indictment. Therefore, the arrest warrant seems to have the
character of a commander during the investigation phase. The bail system should
also be recognized as a suspect's right, separate from the review procedure,
regardless of whether they are arrested or detained. Furthermore, the reinforced
bail could be extended to the stage of interrogation of suspects before arrest.
In the case of the detention period at the investigation stage, the current
regulations on schematic, uniform, and step-by-step detention period should be
deleted considering the adjusted investigation rights, and the future detention
period can be operated flexibly up to 20 days. The attitude of the current law,
which does not include the period required for interrogation of pre-arrest
suspects in such a changed period of detention, should be revised. Finally, the
integrated operation of the restraint system may also affect the location of the
restraint system. In other words, the police station's detention center, which is
used for police-level arrest, should be changed to a detention center run by the
judiciary.

Although the substantialization of the police commission system is claimed as
a democratic control measure for arrest and detention during investigation, its
limitations have already been exposed. Although the National Human Rights
Commission of Korea and the Anti-Corruption and Civil Rights Commission
function to some extent as external and democratic controls, this is also a
post-control method and the limitation of intervention and sanctions authority
raises questions about its effectiveness. It is encouraging that the establishment
of a more independent, neutral, and empowered form of external civil control
is being discussed, but the current proposed form of the plan is limited to police
investigations and does not apply to prosecutor investigations.