경찰관직무집행법상 즉시강제와 권리구제에 관한 연구

Abstract

As a means for Immediate Compulsion, the Act on the Performances of Duties by Police Officers acknowledges Protection Measures (Article 4), Temporary Keeping in Custody of Arms and Others (Article 4-3), Prevention of Danger from Happening (Article 5), Measures to Prevent Danger (Article 5-1), Article 6-1), Prevention & Control of Crime (Article 6), Visits for Danger Prevention (Article 7), Using Police Gear (Article 10-2), and Use of Arms (Article 10-4). By comparing the advantage of Immediate Compulsion and Direct Execution, we can find the difference in the fact that Immediate Compulsion is for "impending need at hand", in which the spirit of warrant is somewhat diluted compared with Direct Execution. The issue of the Immediate Compulsion and protecting the rights of a suspect in question has to do with how we should see Uncertainty Concept prescribed in the law. When the Uncertainty Concept is seen as a legal concept that requires ‘the sole and just judgment’, the Theory of Discretions seen to be the most faithful for the protection of human rights. Here the judicial review focuses on whether or not the relevant authority has made a judgment pursuant to the spirit of ‘the sole and just judgment'. According to the Theory of Discretion, the concern of judicial review lies in whether or not the relevant authority has made ‘the sole and just judgment’. In whatever way it is seen, It seems to make no difference in the stage of filing a suit in that the judicial power has no choice but to review the legality of it rather than dismissing it even with a case where a judicial review is requested for out-of-limit or abusive discretion, as seen in the given precedent. The Act on the Performances of Duties by Police Officers does not contain concrete prescription about collecting and processing information. Therefore, self-determination right of information is likely to be infringed. And for this reason it is desirable to take care so that the self-determination right of information will not be infringed by means of legislation or legal prescriptions. Finally, as to the compensation for property loss from immediate Compulsion, there exists no legal prescription, which makes the substantial compensation for such loss highly difficult. Therefore, it is desirable to prescribe the compensation rules in the Act on the Performances of Duties by Police Officers. Further, it is also desirable to set rules so that appropriate compensation can be made for non-property damage from the exercise of public power.