함정수사의 형사법적 제문제
Problems of the undercover investigation in a substantial and legal procedure law
박성민, 송승현
초록
The undercover investigation is one method that is used to investigate criminals like organized criminal and narcotic criminals that have difficulties in bust or catching suspicion by a investigative agency. This article defines the undercover investigation as a investigative method that is a investigative agency's evil trick or strategy to abet or incite citizens commit criminals and then gather evidences or bust. And also, with deciding the standard of the undercover investigation, this article agree with the synthesize theory that consider synthetically the inner intent of counter-lured person, kinds and characteristics of criminals, details and methods of lure, position and role of a luring person, and illegality of a luring actions itself. In synthesize theory of the undercover investigation view, if it is decided illegal, next when it is prosecuted a case, there are problems that related to decision of a court and criminal liability of a investigative agency. This article examines and divides this into legal procedure law issue and substantial law. The court can decide a punishment to a counter-lured person. The illegality of undercover investigation can't function as a formal trial cause, merely can be understood in terms of a consideration fact in truth court hearing as a problem of admissibility of evidence. The investigative agency that use the illegal undercover investigation method has a problem of attempted abetment, but the attempted abetment requires double feasance, so the investigative agency without feasance of the chief criminal can't be concluded as an abetter. However, the body of the book examines that it can be concluded as a abuse one's authority in Criminal law particulars. The investigation, whether it is a random or compulsory investigation, can infringe on investigative subject's rights. So the legal procedure law restrict through necessity and reciprocality of the investigation, but the undercover investigation have a possibility that may cross the limit line. Especially in case that some criminals are prevalent and necessity of the investigation increases, investigative agency can be easily lured by the undercover investigation. The investigative agency must be careful not to break the essential limit of investigation because of the realistic difficulties of investigation.