현행범인 체포제도의 비교법적 고찰

Abstract

The Supreme Court of our nation continues to demand four requirements for the arrest of criminals. They are the possibility of punishment for action, temporal adhesion of crime, obviousness of crime and criminals, and the need for arrest. However, the legal principle that the need for arrest among the requirements for legality is necessary for arrest, which is all current crimes, has made the on-site police officer hesitant to enforce the law. I think the weak enforcement of public law now derives from the legal principles of the Supreme Court. Therefore, the Supreme Court should distinguish stopped current offenders from ongoing current ones. The former(stopped spot offenders) must be established a legal principle that the need for arrest becomes a legal requirement, but the latter(ongoing spot offenders) is not. Stopped spot offenders are current offenders who stop the crimes just before a police officer is commissioned to the scene or stop further crimes after a police officer arrives at the scene. On-going spot offenders refers to current offenders who do not stop violence and other crimes even when a police officer is commissioned to the scene, or obstructs the execution of official duties by transferring the target of violence to a police officer. For the Daejeon police, 10 percent of the current offenders in 2017 were obstruction of justice. The fact that obstruction of justice accounts for a large proportion of the current offenders means that their public power has weakened, and that those who do not need to be booked are being booked and punished. The reason why an arbitrary companion or a spot arrestee in many crime scenes is because there is no immediate identity verification at the scene. Identifying them on the spot reduces the real need for a spot arrest and stops the violence. Therefore, the National Assembly should legislate an identity verification clause in the Criminal Procedure Act. Although there is a "request" clause in the resident registration law for identity verification from police, the target is limited to "criminal" and there is no mandatory provision for refusal of identity verification. Most of the current arrests are subject to summary orders. The court does not review the requirements for the legality of an arrest in the event of an summary order. The court reviews the requirements for the need for arrest only after the defendant filed a formal appeal. Therefore, the court should notify the police officer of the reason if the police officer's current capture is illegal, even if the order is informal, because a considerable number of police officers believe that the requirements for arrest are not in the law and are actually unnecessary. On the contrary, many police officers believe that arrest is necessary even to prevent further crimes. Comparatively speaking, the expansion of the law on the face of American police officers and reasons for exceptions. Among them, the fact that domestic violent crimes are managed so that they can be arrested even if they are not face-to-face criminals by police officers is something that Korea should also consider, the identification provisions of Germany and France, and the expansion of the reason for Japan's arrest of petty crimes are thought to have great implications for us. Hopefully, the Supreme Court will make the current law on the need for arrest a reality, and the National Assembly is eager to legislate the identification verification clause in the Criminal Procedure Act like Germany and France. If the law is realized and legislated, the use of police physical force could be lowered by one notch, and the number of arbitrary actions or current criminal arrests would be significantly reduced.