경찰개입청구권의 법리와 전망 - 대법원 1998. 5. 26. 선고 98다11635 판결을 중심으로 -

Abstract

The right to request administrative intervention developed first in the area of police power. The police power is a bulwark to protect the lives and property of the people. The state monopolizes the right to exercise physical force to maintain social order. In particular in Korea, the use of firearms by individuals is strictly regulated and individuals are in some ways, exposed to the violence of others in a defenseless state. This article is developed in the order of analyzing the subject cases, examining the contents and characteristics of the right to request police intervention that has been recognized so far, and predicting how it will change in the future. In the case analyzed in this article, despite the apparent danger to the life and body of the victim due to constant harassment, threats, and change of words from the perpetrator, the police were not able to prevent it in advance by responding lukewarmly. In this regard the right to request police intervention, which has been developed in the past can play an important function. However in practice, it is not possible to prevent the risk caused by the exercise of this claim in advance. As introduced in this article, examples of acknowledgment of the duty of police intervention have been mainly dealt with as ex post state compensation cases. In addition to the practical aspect of the lack of manpower of the police, there are also institutional aspects that prevent the theory necessary to prevent primary damage from being applied in practice. The Administrative Litigation Act does not have any means of litigation that calls for active administrative measures such as litigation for performance of obligations or litigation for prohibition. In addition even in the case of cancellation litigation, the provision of temporary rights remedies that require active measures other than suspension of execution is insufficient. Efforts to improve this and protect people's lives, bodies, and property should be carried out simultaneously at the practical level and the institutional level. When looking at the right to request police intervention from a social point of view, it is directly related to the problem that the state should intervene to some extent in the protection of individuals' lives and bodies. When society is strictly separated from the state, as a result individuals are independently responsible for their legal interests. However, if the individual bears all the various risks associated with city life, there will naturally be cases where the individual cannot protect the legal interests in a special environment. And neglecting such cases is undesirable for society as a whole. In the Police Act and the Police Officer Duties Act, the protection of people's life, body and property (Article 2, Item1) is among its duties. Its meaning is not only the state's responsibility for the protection of people's life, body and property, but also the police organization actively means to do.