신분위장수사 특례 규정에 대한 비판적 검토 - 신분비공개·신분위장수사의 본질 및 적용범위를 중심으로 -

Abstract

Recently, as a response to the production and distribution of 'deep-fake sexual exploitation materials', legislative efforts have been underway to expand the application of the special investigation system for digital sex crimes under the Juvenile Sexuality Protection Act, which is a special investigation system for digital sex crimes. However, since the above system was introduced in a hurry to deal with digital sex crimes, which is a new crime, the nature of the system and its distinction from entrapment investigation, which is a similar concept, are ambiguous. In this article, we analyze the issues related to the essence of the undercover investigation and identity disguise investigation system as follows. First, the essence of an undercover investigation is “infiltration” or “access,” i.e., access to the crime scene or the alleged perpetrator. Second, undercover investigations and entrapment investigations are two different investigative methods. The former is an investigation method for approaching criminals, tracking criminals, and collecting evidence by disclosing or disguising their identities in crimes that have already occurred or are continuing. The latter is to recognize punishable offenses against a person who has criminal tendencies and appears to have multiple undetected crimes. If it is an entrapment investigation, the crime-inducing type is naturally illegal, and even if it is an opportunity-providing type of entrapment investigation, it is outside the purpose and object of the investigation, so the person whose crime is induced by the above investigation should not be prosecuted or criminally punished. Third, the difference between a non-disclosure investigation and an identity disguise investigation is that the former is a passive silence and denial, while the latter is an active identity disguise. Fourth, I think the relationship between undercover investigations and wiretapping is actually more problematic than entrapment investigations. This is because it may be in the nature of wiretapping, or it may usurp the system of wiretapping that is limitedly authorized under the strict requirements of the Communications Secrets Protection Act. In this respect, both of them have the characteristics of forced investigation or forced investigation iteslf, so there must be an external control method. Fifth, it would be unreasonable to apply the methods of non-disclosure of identity and disguise investigation, which are special cases for digital sex crimes under the Juvenile Sexual Protection Act, to crimes in general. This is because it is an investigation method introduced in consideration of the characteristics of digital sex crimes, and there are still problems such as organizing the relationship with trap investigations. Sixth, in terms of legislation, ① When introducing non-identity disclosure investigation and identity disguise investigation that can be applied to crimes in general, it should not be applied as it is in the Juvenile Sexual Protection Act, but a new amendment should be made and introduced through research and discussion on investigative methods that are appropriate and universally applicable to crimes in general. ② It is desirable to clarify that non-identity disclosure investigation, identity disguise investigation, and trap investigation are separate systems, and to introduce requirements and procedures to authorize such trap investigations when it is necessary to conduct opportunistic trap investigations in parallel with non-identity disclosure investigations. ③ It is desirable to have clear definitions and regulations on the scope of application for systems that may be confusing in theory and practice, such as identity disclosure investigation, identity disguise investigation, and entrapment investigation.