함정수사에 대한 미국의 논의와 한국의 판례 및 학설 비판
A criticism of entrapment investigation discussions in America and precedents and theories in Korea
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Entrapment investigation is effective on narcotics crimes and bribery cases. But entrapment investigation may violate the principles of the constitution of USA, Japan and Korea, such as the due process of law principle and the safeguard for human rights principle. Moreover, although the investigative agency owes the duty of crime prevention, it leads a crime. In these respects, investigative agency violates principle of good faith. Such criticism and discussion have been recurred in America. Likewise Japan, Korea has been influenced by USA, on this issue. In Korea, likewise in USA, ‘subjective approach’ and ‘objective approach’ are conflict each other. Despite the opinion that Korea precedents are following the subjectivism is, but Korean precedents still seem to follow the subjectivism. Regardless of the court's stance, entrapment investigation should become illegal : when the person who has been subjected to the entrapment investigation had no criminal predisposition, when the entrapment investigation has sufficient causation that if there were not the entrapment investigation, the criminal defendant could not commit a crime. And when investigative agency uses unfair methods during the entrapment investigation. Furthermore, Korean court should concede the illegality of ‘inducement of criminal intent’, not only in case of the offer is investigative agency but also the offer is related with investigative agency. And relating to the issue, what is the effect of the entrapment investigation according to the criminal procedure law, the scholars of ‘judgement of acquittal theory’ seemed to be confused about the different concepts of ‘judgement of acquittal’ between Korea and USA. The judgement of acquittal theory's scholars criticize that ‘the dismissal of prosecution theory’ is unfavorable for criminal defendants, because according to the theory, the judgement does not have the effect of ‘ne bis in idem’. However, prosecutor can not prosecute again based on the entrapment investigation which had been already decided, unless there was a new entrapment investigation. Therefore, the dismissal of prosecution theory is reasonable to release the defendant swiftly.
Abstract
Entrapment investigation is effective on narcotics crimes and bribery cases. But entrapment investigation may violate the principles of the constitution of USA, Japan and Korea, such as the due process of law principle and the safeguard for human rights principle. Moreover, although the investigative agency owes the duty of crime prevention, it leads a crime. In these respects, investigative agency violates principle of good faith. Such criticism and discussion have been recurred in America. Likewise Japan, Korea has been influenced by USA, on this issue. In Korea, likewise in USA, ‘subjective approach’ and ‘objective approach’ are conflict each other. Despite the opinion that Korea precedents are following the subjectivism is, but Korean precedents still seem to follow the subjectivism. Regardless of the court's stance, entrapment investigation should become illegal : when the person who has been subjected to the entrapment investigation had no criminal predisposition, when the entrapment investigation has sufficient causation that if there were not the entrapment investigation, the criminal defendant could not commit a crime. And when investigative agency uses unfair methods during the entrapment investigation. Furthermore, Korean court should concede the illegality of ‘inducement of criminal intent’, not only in case of the offer is investigative agency but also the offer is related with investigative agency. And relating to the issue, what is the effect of the entrapment investigation according to the criminal procedure law, the scholars of ‘judgement of acquittal theory’ seemed to be confused about the different concepts of ‘judgement of acquittal’ between Korea and USA. The judgement of acquittal theory's scholars criticize that ‘the dismissal of prosecution theory’ is unfavorable for criminal defendants, because according to the theory, the judgement does not have the effect of ‘ne bis in idem’. However, prosecutor can not prosecute again based on the entrapment investigation which had been already decided, unless there was a new entrapment investigation. Therefore, the dismissal of prosecution theory is reasonable to release the defendant swiftly.
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