수사방법으로서의 사진 촬영의 적법성 - 우리나라와 일본의 학설․판례를 중심으로 -

Abstract

This article is connected with the permissible range criminal investigation to photograph of faces of suspects without any judge's warrant or suspect's consent. Here, at first, korean and japanese theories and cases are examined and then the legal nature and the concern with the constitutional restriction of fundamental rights etc. several problems are studied. According to the article 37 paragraph 2 in the korean constitution, fundamental rights can be restricted only by provisions and they cannot be restricted just by the reason of the public interest. For example, to collect criminal information and to arrest suspects contribute to the public interest, but the manner of the investigation by the criminal investigator as national institution should be based on the law on violating or restricting fundamental rights. Photographing by criminal investigator is estimated to be legal and if it exceeds legal range, it is unconstitutional. Stipulations that restrict the right of portrait related with investigating procedure are only the principle of the warrant and its exception, so photographing in that limits can be regarded as legal. There is a difference in the restriction of the fundamental rights between Southkorea and Japan, so does the solution about violating or restricting right of portrait. Even according to this result, criminal investigator can take arbitrarily picture required in the investigation, so there is no difficulty in the investigation. Moreover, these day most of daily life of people is taken picture by CCTV installed everywhere and some local governments control systematically pictures of individual who reach the age of criminal ability. In the situation, the need to photograph face of suspects to submit to a witness is not necessary. In conclusion, photographing by criminal investigator without any warrant of judge or consent of suspect can be accept to be legal only in the limitation of principle and exception of warrant.