내사절차에서 피내사자의 인권보호에 관한 연구

An internal investigation is a covert investigative method conducted prior to recognizing a crime for identifying the crime charge of the investigatee of internal investigation by the investigative organization. There is a question about whether or not the legal basis of internal investigation is in the code of practice for judicial police office or prosecutory affair regulations of the prosecutors' office. The types of internal investigation can be commonly divided into general internal investigation, report internal investigation and non-report internal investigation. As for the procedure and effect of internal investigation, it can not execute personal disposition by legal force but can execute impersonal disposition by legal force and, other than these, it proceeded in a similar way to common investigation. As for the type of human rights infringement of the investigatee of internal investigation by investigative organization, it can be mainly divided into the human rights infringement from the abuse of authority of the code of criminal procedure and the inadequacy of internal control in the procedure for internal investigation. In the former, there is the human rights infringement of the personal liberty of the investigatee of internal investigation, and it includes the human rights infringement resulting from indiscretionary abuse such as forced haul, arrests, arrest without warrant, put a person on the wanted list and ban on departure to assure the whereabout of the investigatee by just superficially listening to the statement of the investigatee of internal investigation in the last step of the internal investigation. As for the human rights infringement from the abuse of appropriate procedure, it is forcing the investigatee to write one's statement of written evidence instead of suspect examination written evidence by not granting the status as a suspect even after having confirming the crime charge of the investigatee of internal investigation. Moreover, it includes the human rights infringement that occurs from not notifying the investigatee's right to remain silent nor guaranteeing a meeting with and exchanging documents/materials with an attorney that are recognized by judicial precedence. In addition, it includes restricting the inspection or copying of the internal investigation records for the reason of seeking extreme secrecy and covertness, or conducting of seizure and search for the surroundings of the investigatee of internal investigation without having confirmed the crime charge. Also, identifying the communications by the investigatee can also become an element of infringing the human rights of the investigatee of internal investigation. As for a concrete methodology for guaranteeing the human rights of the investigatee of internal investigation, the improvement of the human rights perception for the investigatee of internal investigation by the investigative organization should precede. Also in the internal investigation procedure, the occurrence of stigmatization effect for the investigatee of internal investigation stemming from the maintenance of the strict covertness should be suppressed, and appropriateness and proportionality should be strictly observed in the procedure, and passive tangible truism, rather than active tangible truism, should be sought. In addition, it includes strictly adhering to the appropriate procedure of the code of criminal procedure and guaranteeing the right of defense for the investigatee of internal investigation and not abusing this through the strictly objective obligation and the rational exercise of the right of recognizing a crime. The theoretical analysis and empirical research attitude for the investigatee of internal investigation based on the human rights protection of the investigatee of internal investigation are also needed. What must also follow are the strengthening of internal control for the internal investigation procedure of the investigative organization, the prevention of abuse of internal investigative right through the internal control for the conclusion of internal investigation and prosecutory discretion and the strict control of disclosing to the press. What's important is the control of the code of criminal procedure of the internal investigative procedure, and the right of the investigatee of internal investigation to remain silent should be recognized and the right to meet with and exchange documents/materials with an attorney must be guaranteed and the right to access the information for the internal investigation records needs to be allowed. Arrests or the arrests without warrant for the investigatee of internal investigation should be constrained as much as possible, and, when the crime charge of the investigatee has been found, the investigatee of internal investigation should be given the status of the suspect by immediately prosecuting as the suspect and the personal disposition by legal force should be exercised. A prudence should be given in the impersonal disposition by legal force in the internal investigative procedure and the human rights infringement of the investigatee of internal investigation must be prevented by excluding the proof ability of the evidence materials that were obtain through illegal internal investigation in accordance with the law of illegal collection exclusion. The investigatee of internal investigation should be included as the main constituent in the review of the arrest, quasi-complaint and criminal indemnity claim, and not only the illegal haul and putting the person on the wanted list by making an excuse as discretionary accompaniment of the investigatee of internal investigation should be prohibited but also the implementation of communication restriction and ban on departure should be carried out very limitedly in the bounds of necessity. In addition, the human rights of the investigatee of internal investigation should be guaranteed by keeping the laws and policies related to internal investigation in good order by having the legal basis of internal investigation on the code of criminal procedure.