행정조사와 진술거부권 고지의무 －대법원 2014.01.16. 선고 2013도5441 판결－

Abstract

As administrative authority is increasing in power and power-related administration is rising these days, thereare more chances that the power-related administrative investigation causes violation of human rights. Moreover,the Korean Constitution does not rule that the right to refuse to make statement is assured only in the‘criminal procedure’ or de facto criminal proceedings. The Constitution rather regulates the right is guaranteedto all the statements which could be against the person under a criminal charge. Therefore, the right to remainsilent has to be granted in the administrative or civil procedures if the examinee’s statements can be used totake penal responsibilities in the following criminal procedures. When to notify the right to remain silent has to be decided by the standard of the examinee. In other words,the right has to be notified to the examinee in his detailed statements or reports before beginning officialinvestigation. The right should be reported if the examinee recognizes or is likely to recognize that hisstatements in the general administrative procedures (including the power-related investigation) could be used asevidence in the criminal procedures. This is because the examinee at the time of making statements generallydoes not know whether the administrative examination continues to the criminal procedure through accusationsor charges. Neither he knows when to convert to criminal proceedings. Whether the examinee ‘recognizes’ ornot has to be objectively judged. It should be decided afterwards, by the standard of the investigation launch,with taking the whole circumstances into consideration. These circumstances illustrate whether the examiner hasthe exclusive power to accuse such as the punishment of tax evaders and whether the examiner or theinstitution he belongs to frequently do accusation or request for investigation. The finding in this research suggest that the judgement in discussion is not valid because the right to remainsilent has to be notified at the beginning of the official examination to the examinee related to election offense. At the time of the beginning of the investigation, he already fully recognizes that his statements could be usedas criminal evidence. Since the investigation procedure by the National Election Commission often continues tocriminal procedures, the Commission has the power to request prosecution investigation or accuse, and theCommission regularly exercises these rights, it is highly significant to notify the examinee of the right beforestarting the examination.