경찰관직무집행법상 불심검문제도의 개정논의에 대한 비판적 고찰

Abstract

This paper reviews the reform issues on police stop and questioning. Recently National Police Agency and some scholars raise worries that police questioning authority to prevent the public danger has more and more emasculated as the democracy has advanced in Korea. So they propose police questioning rules should be reformed toward enforcing the police authority of stop and questioning. The major reform suggestions are as followings. First, police questioning should be broadly executed broadly for 'prevention of danger', although the current law strictly limits the police questioning under the condition of criminal suspicion. Second, 'identification authority' should be introduced, and third, when the questioned person refuses the police request of identification, police officer has to be empowered to establish his(or her) identity by compulsion. These suggestions are based upon the concept that police activity to prevent danger and to maintain safety of the public should distinguished from the police activity for criminal investigation. However, I don't agree with these reform opinions and policies. The unspecified questioning under the abstract and comprehensive term 'prevention of public danger' easily justifies reckless police questioning practice and results in 'sweeping' questioning and identification without any reasonable doubt. I think, this policy violates due process and proportionality principle strictly required under Constitution. Moreover, if the compulsory identification process is introduced, it is clear that police questioning and identification practices infringe upon the fundamental rights of many people who has no reasonable relation to criminal act. On the whole, these policies have the tendency to enforce police power at the sacrifice of citizens' freedom and right of privacy, and constitutional principles of rule of law.