사적(私的) 영역에 개입하는 국가권력작용의 비례성 판단- 가정폭력에 대한 경찰의 영장 없는 현장출입의 가능성을 중심으로

In the past, domestic violence and child abuse were recognized as problems within the private premises, thus refraining from intervening in the national power system. However, as the severity of the crime increases today, it is no longer possible to look at it as an issue within the private premises. That is, the necessity and justification to treat domestic violence and child abuse as “crime” has increased. Domestic violence and child abuse have distinct characteristics because they are the crimes committed within the family relationship. One thing is that the perpetrator often has the status of a victim as a relative (or guardian) or provider. And another thing is that daily activities and criminal activities are conducted in the same place, making it difficult to break off daily activities and violent activities. Accordingly, domestic violence and child abuse crime focus heavily on rapidly separating perpetrators and victims, unlike other crimes. While criminal and judicial responses to domestic violence and child abuse are important, prior and preventive measures of second offense should also be considered. The current law provides response procedures such as dispatch to the scene, emergency measures, urgent Ad Hoc measures, and Ad Hoc measures to swiftly respond to domestic violence and child abuse crime. However, these procedures are often applied in relation to ex-post punishment rather than in advance in that a crime occurs. If these response procedures are interpreted and implemented as ex-post procedures, the most important problem is that the initial response of the police will be reduced in situations when the flagrant offender of domestic violence and child abuse is not clear. As a complement to this, it is possible to consider the entrance system into the private premises by the police Article 9.4 of the Family Violence Prevention Act and Article 7 of the Police Service Act. This system can be interpreted as an exception to Article 16 of the Constitution in that it is conducted without a warrant. The Constitutional Court cited ‘the probability of the suspect's location’ and ‘the urgency’ as a justification for the exception to Article 16 of the Constitution. Judging the legitimacy of the entrance system into the private premises by the police without a warrant is all about the judgment of proportionality about the state power intervened in private premises. Such the judgment of proportionality would be different from the judgment of proportionality involved in the public domain, reflecting the characteristics of the private premises. The judgment of proportionality in the field of entrance system should conduct 'urgent judgment' of whether it is an exception to Article 16 of the Constitution, as well as 'supplementation judgment' of whether it is exercised as last resort. There can be many various standards to categorize the urgent situations when the entrance system into the private premises by the police without a warrant needs. But it can be classified that who the victim is, and which legal interest of the victim is violated. The former could be re-defined as a child or spouse, and the latter as life and physical harm or property damage.