집회·시위 현장에서의 경미한 법위반자에 대한 형사사법처리절차

Abstract

The assembly and demonstrations are the typical situations to express social confliction. Criminal law is the most effective control tool to preserve public order in social confliction circumstances. But, criminal law should be applied prudently because it has forceful punishments to deprive and limit one’s freedom and rights. Especially, When arresting the criminals who has been caught in the act of committing an offence in assembly and demonstration places, the ‘necessity test of arrest’ should be done except apprehension of escape and destruction of evidence. If possible, in case of criminals identified, it is desirable to attend police department afterward or to deal the case in a voluntary attendance manner. And, Summary justice procedure be used positively to deal with minor criminals in assembly and demonstration places. Because it prevent criminals who are almost prisoner of conscience from the stigma effect by criminal record. Also, in case of minor criminals who have been arrested in unlawful assembly places and have no interests to be punished, it is required to introduce rapid procedure to deal the case. The power of Police chief to dismiss the case with a caution should be used properly to release the criminal from burden of time and spirit through rapid procedure. It will also contribute to reduce of workload. The police chief’s power to dismiss the case with a caution is very useful in practice because it has been recognized in the interpretation of law and case. It is the human right based system to prevent stigma effect and release defendants rapidly from criminal procedure through rapid procedure. To guarantee its effectiveness, the power to dismiss a case with a caution be defined in summary justice act.