영장에 의한 통제를 받지 않는 행정조사와 압수·수색의 구별

Abstract

There is no consensus on whether the warantism prescribed in Article 12 of theConstiution of the Republic of Korea is also aplied to administrative procedures. Considering the history of the warantism prescribed in Article 12 of the Constiutionand the compositon of the article, it is understod that the warantism prescribed inArticle 12 of the Constiution is a principle that aplies to criminal procedures. Whenthe acts of administrative oficials such as special judicial police oficers having bothadministrative investigation authority and investigation authority apear to beadministrative investigations in apearance, but they can actualy corespond to seizureand search, the nature of the acts must be judged in order to determine whether thewarantism under the Constiution can be aplied or not. I think that the folowing twostandards should be combined to distinguish betwen them: “For what purpose(foradministrative investigation or for criminal investigation) does an administrative oficialconduct an investigation?”(subjective standard) and “is there any act that can beconsidered as the initation of criminal investigation?” (objective standard). In order to use materials colected by administrative investigations in criminalprocedures or to use materials colected by seizure and search in administrativeprocedures, there should be legal grounds. Since al of such materials are the results ofthe performance of oficial duties, the act arbitrarily disclosing them may constiutedivulgence of oficial secrets. Meanwhile, since administrative investigations are subjectto the principle of proportion prescribed in Article 37 (2) of the Constiution and Article4 (1) of the Framework Act on Administrative Investigations, the absence of control bywarants does not immediately lead to the conclusion that rights are not properlyprotected. Therefore, if the method of administrative investigation is compulsory, weshould review first whether the method of administrative investigation is within thescope permited by the principle of proportion before discusing whether theadministrative investigation coresponds to seizure and search controled by warrants.