미연방헌법 수정 제4조의 영장주의와 행정영장 제도

Abstract

According to the Framework Action on Administrative Investigation, in administrative investigation, a series of requests for the subject of investigation are inevitably made in the form of unilateral orders. For this reason, administrative investigation may infringe constitutional legal interests of the subject of the investigation such as safety and privacy of the body and residence. Accordingly, it is necessary to consider achieving a harmonious balancing between the public interest to be achieved by administrative investigation and the interest of privacy in the process of administrative investigation. In addition, it is required to take measures to protect the rights of the subject of investigation by controlling the methods and procedures of administrative investigations. Efforts to find a balance between the need for administrative investigation and the protection of basic rights have been made for a long time, especially in the United States. As a means of preventing infringement of the rights of the subject of administrative investigation, the review of applying the warrant system of Amendment IV of the U.S. Constitution to the area of administrative practice has continued. The Supreme Court confirmed in several decisions that the warrant system of Amendment IV applies not only to criminal investigations but also to administrative investigations, but mitigated the probable cause standard required for issuing criminal warrants in the issue of administrative investigation warrant. Accordingly, administrative warrants are issued according to the specificity of the evidence or reasonable legislative or administrative standards. There are exceptions to administrative warrant system. Investigations without warrants are possible if the consent of the subject of investigation is obtained, or investigation is carried out in an urgent situation, or if a special need for an administrative investigation is recognized. In particular, the Supreme Court has recognized exceptions for warrant requirement in the case of investigation against closed regulated industries through various decisions, where administrative investigations have substantial benefits, and warrantless investigations are necessary to promote regulatory plans, and constitutional alternatives (measures) to replace warrants have clarity or regularity of the investigation plan or application. Based on various decisions of the Supreme Court, the federal and state legislative prepare administrative warrant systems. Referring to these discussions, we can also explore the possibility of introducing the administrative warrant system in our case. Above all, there is no need to be too passive in using the warrant system as an appropriate means to prevent the possibility of infringement of basic rights due to administrative investigations because the courts adopt constitutional warrant requirement system and do not deny its applicability in non-criminal areas. However, in the case of us who do not set specific requirements for issue of warrant we might relax the level of warrant requirement in the administrative area in consideration of the differences between administrative investigations and criminal procedures. However, it is necessary to establish an administrative warrant system suitable for our reality through close consideration of the practice of the warrant system and the specific methods of administrative investigations and the characteristics of individual industries, and the history of regulations that may differ from those of the United States.