행정·사법경찰 분리에 관한 비교법적 고찰

The conceptual distinction between the administrative police in charge of crime prevention and the judicial police in charge of criminal investigation is possible on the premise that the concept of crime is an act that causes actual harm. However, considering the fact that there has been a theoretical trend to criminalize acts of posing a risk and the fact that the boundary between criminal law and administrative law is blurred, it is almost impossible to clearly distinguish the administrative police from the judicial police, or vice versa. Even with this conceptual ambiguity, a question has been raised as to whether it is possible to organizationally or substantially separate these two functions of police. Even if such organizational and substantive separation is practically possible, a further question can be raised as to whether such separation can be justified. Therefore, this study aims to argue that it is difficult to conceptually distinguish between the administrative and judicial police and that the substantial separation of such functions increases the possibility of not fully protecting civil liberties and rights. By conducting comparative legal research on this topic, this study found that the even continental legal system countries where the issue of separation of administrative and judicial police have been academically discussed, have consistently pointed out that such separation might hamper the effectiveness of the criminal process. Accordingly, these countries have never separated their police organization into two pieces, the administrative and judicial police. Meanwhile, the civil law system countries based on a different legal system from the continental legal system countries have not had any necessity to academically discuss the conceptual distinction between the administrative and judicial police, nor they had substantially separated the two functions. These findings based on comparative research can give valuable policy implications to Korean legal system where the academic discussion on such separation has recently developed.