마약범죄의 형사법적 대응에 관한 고찰

Abstract

Article 12 (1) of the Korean Constitution accepts the principle of due process as a constitutional principle. The principle of due process stipulates the basic principle that criminal proceedings should be regulated in terms of guaranteeing basic rights. Therefore, if the investigation by the investigative agency violates the principle of due process, it is illegal. An investigation may conduct an investigation necessary to achieve its purpose (Article 199 (1) of the Criminal Procedure Act). However, even if the necessity of such an investigation is recognized, it cannot be allowed if the means of the investigation are not equivalent to the purpose. As a general principle of investigation, the principle of considerability of investigation or proportionality of investigation is derived from the principle of due process. Specifically, the means should be suitable for achieving the purpose of the investigation (the principle of suitability), and the necessary means with the least infringement (the principle of minimum infringement), and there should be a balance between the benefits of achieving the purpose of the investigation and the benefits infringed by the investigation (the principle of balance). Currently, drug crimes have difficulties in detecting criminals and collecting evidence due to the wider area and the trend of intelligence due to informatization. As a means of this, the need for a trap investigation will increase further. Nevertheless, it should be legally allowed only to the extent that it complies with the principle of due process and the principle of considerability or proportionality of investigation under Article 12 (1) of the Constitution.