위장수사에 관한 검토: 기본권의 제한, 강제수사 여부, 영장주의 적용 여부 및 절차적 통제의 관점에서 -「아동·청소년의 성보호에 관한 법률」 및 「사기방지 기본법안」 규정을 중심으로

Abstract

In recent years, crimes have evolved into more intelligent and organized ones, such as by applying the latest information and communication technology and mobilizing point organizations. As digital technology and point organizations are used in various crimes, such as digital sex crimes, new types of financial fraud such as voice phishing, and drug dealing, it is difficult for investigative agencies to even have access to crimes and arrest the main culprit. Accordingly, the need to introduce a new investigative method to address this difficulty has increased. Recently, upon the amendment of the Act on the Protection of Children and Juveniles against Sexual Offense, the provisions on the “identity-concealed investigation and undercover investigation” (hereinafter referred to as “undercover investigation”) were introduced, and the Basic Act on Fraud Prevention, which includes the provisions on undercover investigations, was also introduced. Along with the introduction of these proposals, undercover investigations are garnering attention. However, it seems that a sufficient review of the substance and permissible conditions of undercover investigations has not been carried out yet. The requirements for the permissibility of undercover investigations may vary depending on whether fundamental rights are restricted by undercover investigations, whether the restriction can be justified, whether undercover investigations fall under compulsory investigation, and if it falls under compulsory investigation, whether the warrant principle is applied. Therefore, a detailed review of this is necessary. Since undercover investigations are an act by a state, in which an investigative agency disguises its identity and approaches a target to collect evidence or information, it falls under the constitutional limitation of fundamental rights per se. And this restricts the freedom of privacy and the right to self-determination on personal information. However, such restrictions on fundamental rights can be justified in accordance with Article 37(2) of the Constitution of the Republic of Korea. On the other hand, undercover investigations use deceptive means to infringe on the right to legal protection of the target of investigation. Therefore, it should be regarded as compulsory investigation. However, since the warrant principle does not apply to all areas of compulsory investigation, it can be seen that the warrant principle does not apply to undercover investigations. Even so, it is reasonable to assume that the judicial control of the court’s permission is required in that the state infringes on an individual’s interest by deceptive means when conducting undercover investigations. In this paper, the provisions on undercover investigations of the two legislative bills were reviewed, based on the general review of undercover investigations above. In summary, there is a need to supplement the procedural control for identity-concealed investigations, the need to go through the prosecutor when requesting permission, and the need for a regulation that imposes an obligation on the investigative agency to notify the fact of undercover investigations.