공공장소 퇴거명령과 무관용경찰활동론의 헌법적 문제점 - 노숙인의 기본권 제한 문제를 중심으로 -

This paper has dealt with constitutional issues regarding to ‘the eviction order’, one of the police's actions, and the so-called ‘zero tolerance policing strategy’, in particular, in relation to the restriction on basic rights of the homeless. First, we reviewed the constitutional basis of the police authority as a state power and the formation of the police organization for it and the basic rights of the homeless one by one. And then, it was confirmed that Police action as an exercise of legal authority should take place within certain legal criteria, such as a certain legal basis and method and within the legal limits. Especially, the police action of violating basic rights should be conducted according to strict criteria, such as clarification principle of the law or proportionality of the law. Therefore, it is not appropriate to limit basic rights with the eviction order based on the comprehensive authorization. The restriction of basic rights is, in principle, only by individual authorization. However, comprehensive authorization is only possible in exceptional cases, such as ‘minor restrictions on basic rights’ or ‘beneficial police actions’. ‘Zero tolerance policing strategy’ is understood to be a preventive crime policy in pursuit of the effect of ‘punishing as a warning’. But it is against the principle of proportionality, especially, the principle of minimum infractivity, and it has also the legal problem of that it is reducing administrative discretion of enforcement authorities to meet concrete validity of specific cases.