미국의 행정조사에 대한 영장주의 적용에 관한 연구

The Article 2, subparagraph 1 of Korean Framework Act on Administrative Investigations provides that an "administrative investigation" means any activity performed by an administrative agency, such as conducting field investigations, file inspections, sampling, etc., or requiring an person subject to investigation to make reports, submit materials or be present to give statements, with a view to gathering information or materials necessary to policymaking or the performance of its duties. Administrative investigations shall be conducted within the minimum scope necessary to achieve the objectives of investigation, and the authority to conduct such investigations shall not be abused by using it for other purposes, etc. In addition, th Article 5 provides that the administrative investigations conducted by administrative agencies shall be limited to those prescribed by Acts and subordinate statutes, etc, however, the former rule does not apply with respect to administrative investigations conducted with the voluntary cooperation of the persons subject to investigation. In this way, it is possible that an administrative inspection would violate people's fundamental rights guaranteed by Constitution severely since the inspection which has the substance of a search or a seizure could be conducted to the people without the legal base if they agree to do so. Especially an administrative inspection may be developed to a criminal inspection, or any evidence found in the course of the administrative inspection may be used for furthering the criminal procedure. In this case, the Constitutional guarantee could be avoided if the evidence found in the administrative inspection is used for the criminal suit. Therefore, the necessity of a warrant on the administrative inspection is the question in issue these days and a lot of studies have been done. In U.S., court cases on the administrative searches and inspections are cumulated and studies on this issue have been done actively. The Fourth Amendment’s protection extends beyond the sphere of criminal investigations and guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by the government officers without regard to whether governmental activities are investigating crimes or performing other functions or not. Specifically, the constitutional guarantee concerning searches and seizures generally applies to administrative searches or inspections, and a warrant is generally required for these searches. The U.S. has already established legal principles on the scope of the warrant for the specific administrative field and a lot of court cases have been cumulated. In this regard, the U.S. principles and cases as to the application of warrant to the administrative search or inspection will give a lot of implications to the Korean administrative inspections.