주취자 보호조치에 대한 경찰법적 검토 − 제지를 위한 보호조치를 중심으로 −

Abstract

Mostly, problems of drunken people can be categorized into problems with protecting the drunken peopler himself, protecting the victim from the drunk people, and protecting the police from distruption of police duties by the drunken people. National measures on drunken people must be carried out systematically in a mixed form of passive administrative area in order to prevent danger and aggressive administrative area in an aspect of welfare state in order to establish security network in the society. Especially, invocation of police authority in the aspect of danger prevention requires a legal basis according to the principle of statutory reservation and it is obvious to be cautious not to overcross the limit of execution of ordinary policy authority in order to prevent violation of human rights about a drunken people. As they manage both administrative police activity such as crime prevention, danger prevention and jurisdiction police activity like criminal investigation, police face the problem of whether to transfer all crimes to investigation procedure or not. The representative case of this matter is dealing with drunken people. In the case of categorizing drunken people into subjects of aid and subjects of restraint, up until now regarding subjects of restraint the discussion was only concentrated about criminal process later on and invocating police authority beforehand in order to prevent danger was insufficient. Therefore, breaking away from the emotion of dealing drunken people with hospitality, now we must seriously think over if we can protect potential victims from criminal activity of drunken people and the police who serve for the ‘maintenance of public security or order’ and if there are legal incompletion for right execution of governmental authority. According to current 「Act on the Performance of Duties by Police Officers」, to drunken people who require emergent aid such as insanity can convoy to medical or aid organizations. However, for drunken people who do not require emergent aid, the police only notify fine or claim summary trial after arresting at the crime site or wait until crime occurs and secure capture of drunken people. It is based on the fact that seperate regulations for protection measure are insufficient, and police respond rather passively not aggressively because of concerns of human rights violation. Conducting according to special authorization article through legislation for protecting measures regarding drunken people who do not require emergent aid is most ideal. However, in order to do this our nation should clearly state regulations about before and after control mechanism for human rights protection such as receiving control from a legal officer regarding protection measures in Germany. Opposing basis for ‘protection measures for restraint’ are the fact that protection measures go against the principle of warrant requirement under the constitution, can provoke violation of human rights on drunken people through ‘protection measures’ which is actually a form of detention despite we are adopting the principle of warrant requirement, if ‘protection measures’ beyond restraint is possible on disturbance for danger prevention, it can similarly apply to other crimes as a administrative legal measure with force before jurisdiction process. These grounds are valid and must open our ears to them since it has the value of listening. According to current law, the matter of applying general authorization article regarding ‘protection measures for restraint’, there is no clear authorization regulation like Germany and even if there is, we must consider the reality that there is not enough theory or precedent accumulated to realize ‘danger regarding public security or order’ in the aspect of citizen’s possibility of anticipation and legal safety. Therefore, instead of apply general authorization article beforehand, in order to minimize the defects of application by reviewing the dangerousness regarding clarity, and must analyze, propose historical data in order to receive persuasion that introduction of such article is valid for control of police discretionary authority. By doing this, it can solve the uncertainty of ‘immediate force theory’ that holds several problems, and we must make effort so that the beforehand control mechanism regarding police discretion which must be kept during emergencies can pass the constitutional filter.