함정수사의 위법판단기준과 법적 효과

Abstract

Investigation is the first step of a criminal procedure. The criminal proce- dure performs important function, which actualizes of one nation and secures human rights. But recent crime report shows a tendency not only to be complex in quality but also to be increased in quantity. It becomes more difficult to apprehend crime itself, to collect evidence, and to arrest criminals because the crime is envolved with consensual, invisible and habitual. Here comes the necessity of tricky, undercover method, so-called entrapment investiga- tion, and most investigation agencies of many countries use this method nowadays. Entrapment investigation dose harm to guarantee of human rights, so the control of entrapment investigation is important matter. In United States, the Supreme Court established ‘defense of entrapment’ through its judicial precedents to prevent law enforcement authorities from manufacturing crimes. There are many theories on the control of entrapment investigation. We must find out the suitable theory which can be harmonized with our current condition of law system, and also study on the mutual relation between standard of Illegality and Legal Effect of Entrapment investigation. There are some ways for the control of illegal entrapment investigation. First, to remove the possibility of illegal investigation at the beginning stage, reasonable guidelines like the Attorney General’s Guidelines on FBI Undercover Operations should be prepared. Second, if the entrapment investigation has already been practiced, penal responsibility of illegally induced defendant should be denied. Third, add to the ways above, we can take approval of penal responsibility of instigator into consideration.