搜査機關 內査의 效率的 統制와 被內査者의 人權保障에 관한 硏究

Pre‐investigation refers to any activities that investigatory organization confidentially performs to find out the pre‐investigate’s criminal suspicion before recognizing a real crime. There are other terms similar to pre‐investigation such as fact‐finding, petition, plea and strategic investigation. However, these terms are different from pre‐investigation on the ground that pre‐investigation is related to activities undertaken to determine criminal suspicion. Although there are a few opinions suggesting that the legal ground of pre‐investigation can be found in Article 199 of the Code of Criminal Procedure, Judicial Police’s Duty Guideline or Prosecutor’s Case Procedure, these guidelines are unlikely to serve as a clear legal ground for pre‐investigation since they are merely internal instructions of investigatory organizations which do not have public effect. Pre‐investigation should aim at strict confidentiality while still having reasonability and proportionality like normal investigation. It belongs to the guiding principles of criminal actions such as the substantive truism, the principle of reasonable procedures and the right to receive prompt judgment. Pre‐investigate’s basic rights should not be unfairly restricted by the investigatory organization and also their rights including the right to request a lawyer, transport, and to see and copy the pre‐investigational record shall be guaranteed. The investigational organization that undertakes the pre‐investigation must secure the pre‐investigate’s rights by observing the obligation of objectivity. The general methods to supervise pre‐investigation activities are first, monitoring by using the investigatory organization’s internal reporting system, and second, other actions to monitor the activities such as preliminary investigation on private life, observation, tailing after, taking photos, fact‐inquiry, restricting departure, pre‐investigation places and releasing the record to the press. Both methods should serve to prevent the pre‐investigate’s rights being infringed unnecessarily. Warrants prescribed in the constitution must be also applied to pre‐investigation activities. Illegal hauling, arrest, arrest without warrant or the identified criminal search arrangement against the pre‐investigate‘s to perform body search or voluntary accompany should not be allowed. To protect the pre‐investigate’s rights, it is necessary to ensure the pre‐investigate’s right of silence and of statement as well as the right to view or change his/her statement, increase or decrease the length of the statement. Furthermore, it is necessary to judge the pre‐investigate’s testimonial capability for statements including a self‐statement based on the suspect’s interrogation statement. To guarantee the pre‐investigate’s rights in a more specific way, the judgment and quasi‐complaint for the propriety of arrest and restraint, national compensation, and compensation for damage or loss may be requested.