함정수사의 통제방안에 관한 고찰

Abstract

Entrapment is defined as an investigative method where which an investigative institution induces a citizen into committing a crime and arrest the citizen once the crime is committed. The basic ideals of investigation is finding substantive truth and protection of human rights. However, these two ideals have contradictive roles. Putting too much emphasis on finding substantive truth limits protection of human rights,and vice versa. Thus, these two contradictory ideals need to be carefully weighed against each other during the course of an investigation. Entrapment can be categorized into two types, ‘opportunity type entrapment’ and ‘criminal intent type entrapment’. While the former is legal, the latter is illegal and prohibited by law. Legal precedents also define the latter as entrapment, while the former is not defined as entrapment but defined as investigation within legal bounds. Entrapment is a method of investigation that focuses on finding of substantive truth. The method of entrapment does not apply to all types of crimes, but it is often used for crimes where substantive truth finding is difficult, such as drugs, prostitution, bribery and smuggling. However, entrapment is a cause for grave concern in abuse of human rights. This study attempts to scrutinize this problem and propose policy solutions. Guidelines for entrapment investigation can be set by the judicial branch, but it may be difficult due to many particularities that need to be addressed. However, it seems obvious that a guideline established by legal precedent is going to be effective in setting boundaries in investigations. Also, it's important for the investigative institution to set internal guidelines. To proactively prevent any violations of law in the course of an investigation, it’s best practice to follow the guideline from the beginning of an investigation to the end.