Article 110 of the Criminal Procedure Act, which governs the restriction on seizure and search of places requiring military secrecy, stipulates that the consent of the person in charge is required for seizure or search of such places. But it states that the person in charge can not refuse consent unless it significantly harms the important national interest. Articles 110 to 112 of the Criminal Procedure Act are provisions designed to reconcile the ideal of discovering the substantive truth in criminal proceedings with the public interest of protecting military, public official and private entrusted secrets. Considering the textual structure of Articles 110 to 112, the protection of military secrecy is more emphasized than the protection of public official or private entrusted secrets. In particular, Article 110 prohibits the search itself of places requiring military secrecy, distinguishing it from Article 111, which permits searches for other public official secrets while only restricting seizure. This enhanced protection for military secrets is also found in foreign legislative examples, such as Germany, and can be understood as having a rational legislative purpose. Some argue that Article 110 only applies to material searches and not to personal searches. However, this view is not plausible. By definition, the object of a search includes not only objects but also places where a person's body is located. Considering that Articles 108 and 215 of the Criminal Procedure Act, which are the basis for search warrants, uniformly regulate both material and personal searches, there is no basis for such a distinction. Article 138 is merely a provision for the application mutatis mutandis of procedures for executing arrest warrants. Given that Article 110 restricts the court's search authority at a higher level and serves to balance the purpose of criminal proceedings with significant national secrecy interests, Article 138 can not be seen as excluding the application of Article 110. Furthermore, Article 138 does not apply when search warrants and arrest warrants are executed together. Considering that Article 219 applies Article 110 without limitation, the argument that Article 110 does not apply to personal searches clearly violates textual constraints. Regarding whether seizure or search is possible if the person in charge refuses consent, even if the seizing and searching agency determines that it does not significantly harm the national secrecy interests, academic opinions differ. However, according to the current text of Article 110, the phrase “unless it significantly harms the important national interests” is stipulated only as a ground for restricting the refusal of consent, not as an exceptional ground for permitting seizure or search, as in Article 112. Since it is difficult for the court or the executing agency to know the content of military secrets in advance, interpreting that seizure or search is possible without the consent of the person in charge is difficult to accept. From a legislative perspective, it is necessary to establish a secret management system for trial procedures to ensure the defendant's right to defense, similar to the approach in the United States. This is because the current Article 110 omits the perspective of protecting the defendant's right to defense. Furthermore, it is necessary to explore other methods to achieve harmony between protecting significant national secrets and judicial interests, such as utilizing court orders for submission for seizure and entrusting the execution of search warrants to military agencies, as done in Germany.
C.K.M. Lee (Mon,) studied this question.