함정수사의 적법성

Abstract

Entrapment as proactive investigational method is a technique of investigation, by which undercover investigator or a private man instigated by investigating authority induce a person to commit a certain crime and then disclose and accuse confidential and invisible crime. Traditionally two competing tests exist for determining whether entrapment has taken place, known as the "subjective" and "objective" tests. The "subjective" test looks at the defendant's state of mind; the entrapment defense can be claimed if the defendant had no "predisposition" to commit the crime. The "objective" test looks instead at the government's conduct; entrapment occurs when the actions of government officers or their agents would have caused a normally law-abiding person to commit a crime. late judicial precedents assume transitional attitude toward subjective test, which was its traditional standard. namely judicial precedents rule: whether deceptive investigation comes under illegal entrapment, should be decided by considering comprehensively type and character of crimes, status and role of inducing person, context and method of inducement, response of the induced criminal to the inducement, criminal record of the induced and the illegality of the inducing activity, etc. The legality of entrapment should not be decided schematically by existence of predisposition of the accused, and be inquired concretely on basis of principle of investigation, namely equipment of criminal suspicion, coincidence with principle of proportionality and consideration of free will of the criminal. Finally a rulemaker should assume a prudent attitude in legalize entrapment investigation, because there are many issues of law, which are not arranged theoretically, for example, range of criminal catalogue capable of entrapment, standard of entrapment test and legal effect of illgegality of entrapment.