압수, 수색으로서 실질적 의미를 가지는 행정조사에 있어서 영장주의의 준수필요성에 대한 소고

Abstract

Supreme Court held that opening investigation into the suspected hidden goods against ‘the act on the control of narcotics’ was simply regarded as administrative investigation. This becomes concern about abusing administrative investigation by customs officer instead of criminal investigation including search and seizure by designated customs officer as special judicial police officer. According to Number 5, Clause 2, Article 3 of ‘Framework Act on Administrative Investigations’, administrative investigation should not be investigation for criminal punishment, and administrative investigation procedure should not apply to criminal affairs. The Supreme Court decision classifying the opening investigation into the suspected goods of concealing narcotic as administrative investigation, even though the goods should have be under criminal investigation. However, I could not agree this ruling of Supreme Court because the Constitution affirms warrant system about compulsory investigation. Korea customs Service’s homepage states the customs service controls customs-related offender such as contraband, evasion of customs tax and illegal import etc., and person who commits a crime related to narcotics in airport or harbor, and person who commit a crime related to international trade such as deceptive indication of origin and illegal import or export of strategic materials, and the violation of intellectual property rights such as forged goods related to importation or trans shipment, and the crimes against foreign exchange transactions act that occurs in the process of exportation and importation. There are about 550 investigation personnel in 47 customshouse all over the country. We can understand that such an investigation personnel means special judicial police officer. Therefore, it is not impossible that general customs officer asks special judicial police officer to criminal investigation about the goods suspected to have something implicated in a crime. And the request dose not make onerous tasks. In conclusion, if the entered goods to customhouse is suspected of concealing narcotics, the goods should be under criminal investigation with a seizure and search warrant that is issued by judge after prosecutor who got a request from special judicial police officer asked. The illegally obtained evidence against warrant system and derivatives from the illegally obtained evidence should be denied the admissibility of evidence on the basis of the exclusionary rule.