경찰책임의 재구성

Abstract

It’s natural that the traditional theory about police-responsibility coped the basis of 'individually authorized provisions' with legal interpretation. But in case of police-responsibility on the generally authorized provision about police power, actually it could be said that the principle of legal reservation hasn’t been working, for the law as the principle of legal reservation is so hypocritical in side of appliance of generally authorized provision about police power that it is not the actual basis of the basis of exercising the police authorities but the reasonability instead of the law in the area of infringing administration. Actually ‘police-responsibility' has been explained by ‘reasonability’ which contains ‘principle of adaptation’, ‘principle of properness’ etc., but the contents of ‘reasonability’ is just The Principle of Proportionality of constitutional dimension. Thus the contents of police-responsibility doesn’t depend on law but on ‘reasonability’. And this is not suitable for the spirit of the principle of legal reservation. However, police-responsibility should be grasped in the context of constitution, and is necessarily needed to guarantee other value - order. Thus it is understood through the constitutional provisions which mean that individual should burden the liability of preserving public interests partially with the authorized party concerned. And police-responsibility couldn’t be derived from ‘reasonability’ which is not law. That is to say, the contents of police-responsibility should be sentenced by the standard of compromising the security of human rights and the secureness of maintenance of public order and security in the context of the provisions of Constitution of the Republic of Korea. And the character of the liability in police-responsibility is not the possibility of blame but the adaptation of solving police situation. Those who have no blame should be compensated for the burdening police-responsibility. It is true that 'individually authorized provisions' in dimension of law by the Parliamentary Members should be applied ahead of constitution on the principle of legal appliance. Even in that case constitution should still take control of 'individually authorized provisions'. And the boundary and limit of contents of generally authorized provision is destined to be set up. That is to say, Even though 'individually authorized provisions' in dimension of law by the Parliamentary Members go ahead of constitutionin, both of 'individually authorized provisions' and 'generally authorized provision’ should be controlled by principle of proportionality in constitution in their concrete application. In conclusion, the traditional theory of police-responsibility should be abolished or revised as previously mentioned. In short, the theory of 'police-responsibility' should be newly reframed in the context of constitution. It is not the conception in dimension of law through legislation by Parliamentary Members but the one in constitutional dimension. The newly reframed theory about 'police-responsibility' could be misunderstood as the way of thought of totalitarianism, but that possibility would be zero because our constitution is the libral-democratic one and 'police-responsibility' would be applied and interpreted in the libral-democratic value-order.