한국에서 수사와 내사 범위와 한계

Abstract

There is no legal basis to classify preliminary investigation from formal investigation in Korea. But preliminary investigation is defined as a secret investigation of crime by the police or the prosecutor, which is not open to the public and may be terminated by closure of preliminary investigation or commencement of formal investigation. Actually so many police officers and prosecutors widely use preliminary investigation as a tool to detect crime and/or criminal without legal restraint attached to formal investigation by the criminal procedure law. For example, the subject of preliminary investigation has to go to the police station or the prosecutors' office in the name of "voluntary accompany". And investigators often request the subject of preliminary investigation to produce so-called "self protocol" relating suspicion of crime. Besides lots of search and seizure without warrant are employed by way of consent or emergency exception. These methods of preliminary investigation might infringe the fundamental rights of the subject and violate the principle of due-process. In order to prevent investigation agency from abusing its power, especially illegally administering compulsory measures to the citizens, the methods of preliminary investigation should be restricted to more narrow range such as questioning without any enforcement,gathering information from voluntary informant, and so on. Although the concept of preliminary investigation cannot be eliminated, its limit shall be maintained strictly. In this context it is necessary to insert the new provision on preliminary investigation in the criminal procedure law as follows. The Criminal Procedure Law, Article 199 ③ Before commencing formal investigation, the officer of investigation agency may carry out preliminary investigation based on voluntary consent of the subject such as questioning,gathering, and researching information relating to the crime.