경찰의 정보수집 활동과 개괄적 수권조항 비판

Abstract

Police collect information that is required for policing purposes. As more human right violations were reported due to police intelligence collection process, attention has been drawn to its legal basis for police intelligence gathering. The purpose of this paper is to present a different way of interpreting legal provisions which not only provide a clear legal basis when collecting personal information but also set legal boundaries of police action. In an attempt to find resonable legal basis for police information collection activities, scholars have relied on German legal theories of “general clause”. Under the German law, there are ‘authority provision’ which empowers police to conduct certain act therefore grant authority, and ‘duty provision’ which defines the scope of polices duties. The prevailing views interpretate Korean Police Law within the scope of German legal theory and claim that for the police to collect information that threatens privacy, there should be a ‘authority provision’ or at least a general clause which provide legal basis for police intelligence activities. However, it should be noted that the principle of statutory reservation which governs Korean legal system requires not only the perfunctory legal basis but more importantly the legal limitation of police power that exercise authority over people. So this paper argues that the general clauses might provide legal basis but it is not sufficient to set boundaries, and therefore a new method of interpretation is required.