수사상 임의동행에 관한 법적 고찰

Abstract

The investigative authorities have two measures to accompany suspects from the criminal scenes to investigative offices such as police stations. One is arrest which is enacted in criminal procedure, the other is voluntary accompaniment. Contrary to arrest, there is no definition of Voluntary accompaniment in investigation. So, the authorities often use procedure to acquire informations from suspects and arrest them if they are not cooperative. Voluntary accompaniment has been criticized to pose a potential danger to the invasion of suspect rights such as the freedom to leave and the right to remain silent guaranteed Korean Constitutional Law. In recently, the Supreme Court of Korea established that if the individuals who are asked to voluntary accompany the officer to the police station are not given the “freedom to leave’ at any time, the ”voluntary accompaniment“ is an illegal arrest and the evidence is not admissible. This study examined the legal characteristics and elements of voluntary accompaniment in investigation procedure and suggest some improvements. First of all, investigative authorities including police should try to recover people’s trust by obeying the requirement and due process of voluntary accompaniment. It is necessary to introduce new systems to manage voluntary accompaniment. Second, the objective elements of voluntary accompaniment relevant to criminal suspicion should be established more clearly to prevent abuse of investigative officers. Third, the procedural elements of voluntary accompaniment should be amended in detail to protect suspects rights to leave the place and the rights to counsel when the arrest takes place.