「경찰관직무집행법」상 보호조치의 헌법상 정당화 근거와 입법적 개선 방향

Abstract

Protective measures are an means that restrict the physical freedom of the subject as a system that temporarily protects those with delirium, intoxicants, and suicide attempters at the police station. Accordingly, a review of constitutional justification is an important issue. The constitutional justification of protective measures in case of self-endangerment and in case where there is a risk of violation of a legally protected interest of others is different. However, there is a lack of systematic coherence as the current regulations stipulate them in parallel. The constitutional justification of protective measures taken when there is a risk of infringing on the legal interests of others is the state’s duty to protect basic rights based on Article 10 of the Constitution of the Republic of Korea. On the other hand, the justification of protective measures for self-endangerment can be derived from consideration of right of self-determination and paternalism. The state's paternalistic intervention in self-endangerment is possible when the subject is not able to properly exercise the right of self-determination due to lack of free will. Thus, the protective measures against self-endangerment behavior should be based on the subject’s loss of free will. This can be applied to the justification of protective measures for suicide attempters also. Suicide attempts that police officers encounter by chance are usually appeal-type of suicide attempts. There is no way to confirm the serious and final intention, and thus, protective measures against suicide attempters can be justified. In interpreting the current regulations, protective measures for self-endangerment should be a key criterion for determining whether the subject has lost the ability to act autonomously. On the other hand, whether a person requiring protective measure loses normal judgment ability should not be considered for the protective measures for preventing infringement of the legal interests of others. This is because the police should intervene if there is a risk of infringing on the legal interests of others, even if one is not a mentally deranged or intoxicated person. However, legislative improvement is needed since the current regulation does not distinguish between self-endangerment and the risk of violation of a legally protected interest of others. For the direction of legislative improvement, it is appropriate to distinguish cases where there is a risk of self-endangerment and violation of a legally protected interest by referring to German legislation. The former can be further subdivided into “a state of loss of free decision-making ability,” a “state in need of help” to the extent that a hypothetical and presumptive intention to consent to protective measures can be recognized, or a person attempting suicide. For the latter, defining the case where there is a risk of infringing on the legal interests of others, such as life, body, and property, through criminal acts or violations of order as the subject of protective measures is appropriate.