공수처 검사의 수사범위와 영장청구권 - 대통령 내란혐의 관련 강제수사를 중심으로 -

초록

This paper addresses the legality of the personal restraint procedures carried out under the direction of a prosecutor from the Corruption Investigation Office for High-ranking Officials (“CIO”) against the President of the Republic of Korea on charges of abuse of authority and rebellion between December 30, 2024, and January 19, 2025. The authors’ conclusions are as follows: i) The charge of rebellion against the President does not fall under either the category of “high-ranking official crimes” as defined in Article 2, Clause 3, or “related crimes” as defined in Article 2, Clause 4, of the Act on the Establishment and Operation of the Corruption Investigation Office for High-ranking Officials. Therefore, the CIO prosecutor lacks investigative authority in this matter. ii) Even assuming that investigative authority exists, pursuant to Article 20, Clause 1, and Article 3, Clause 1, of the same Act, a CIO prosecutor does not hold prosecutorial authority over the crime of rebellion and thus functions as a special judicial police officer rather than a prosecutor. Consequently, the CIO prosecutor cannot independently request a warrant but may only apply for a warrant request through a prosecutor at the Seoul Central District Prosecutors’ Office. Accordingly, the issuance and execution of the warrants in this case were based on an unauthorized request and are therefore unlawful. iii) Even if the issuance of the warrant is deemed lawful, the execution of the search warrant was unlawful, as the investigative authorities entered the presidential residence and arrested the President without obtaining the “consent of the person responsible,” as required by Article 110 of the Criminal Procedure Act. Consequently, the resulting detention based on this arrest is also unlawful.

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