불심검문의 한계설정에 관한 고찰

Abstract

Individual's freedom and rights protected by the Constitution could be restricted only as long as measures taken to maintain public security, welfare, and law and order can not violate the essential part of the freedom and rights. To protect social peace and to arrest a suspect effectively, specific and objective measures should be introduced, which leads to ensure legitimacy of police conduct for crime prevention and detection in the pre-stage of investigation In this context, the provision of police questioning in 'the Act on the performance of duties by police officers' states : (1) that a police officer can stop and question a suspect if there is probable cause that the suspect committed the crime or are intending to commit it under reasonably considering the suspicious actions or surrounding circumstances; (2) that the officer can also stop an person who seemed to know the finished or committing crime; and (3) that in the course of questioning, the officer can search whether the suspect possess weapons. As for a police officer's stop, the Supreme Court concluded that immediately after snatching, the police officer's conducts to stop and block the movements of the persons who seemed to be similar features of the suspect in order to question are reasonable action with consideration of the degree of criminal seriousness, involvement of the crime, urgency of the situation, degree of suspicion, and needs of the questioning. Although the Court's conclusion justifies the officer's restrictive use of physical force such as movement interference, there have still been no objective standards for the suspicious persons who do not obey the police stop. Assuming the need of police questioning measures above mentioned, the paper deals the permissible standards for 'police questioning pursuant to the Act on the performance of duties by police officers' in order to dispel worry of the violation of basic rights and to make effective police questioning, and then illuminates the successive measures for those who do not obey lawful stop and police questioning. Based upon this review and due process of law in the constitution, the paper suggests that more strict and objective standards for police stop should be established, and that restrictive detention by police officers could be allowed to those who do not obey police stop.