「경찰관 직무집행법」상 위험방지를 위한 가택출입의 요건

Even when it is deemed necessary that police officers enter and exit places of residence to prevent danger, entry without the resident’s consent or approval may limit their freedom from intrusion into places of residence and other rights guaranteed by Article 16 of the Constitution. Therefore, there should be a balance between necessity of police officers’ entry into places of residence to prevent danger and protection of fundamental rights such as residential security and freedom of privacy. While Article 7 of 「Act on the Performance of Duties by Police Officers」 stipulates the terms of entry and exit of places of residence for prevention of danger, it is imperative that requisites and limitations of police officers’ ability to enter places of residence without a warrant in order to prevent danger are clearly established. Article 7 (1) of 「Act on the Performance of Duties by Police Officers」 defines the requisites for entry and exit for prevention of danger as ‘where any danger to people’s life, body, or property is imminent as a dangerous situation’, and when the entry is ‘within the extent rationally determined necessary, if such are deemed essential for the prevention of danger or the rescue of victims.’ In other words, it requires presence of concrete danger and its imminence, as well as the absolute essence of entry by the police. However, it is questionable whether the requisites for entry and exit of places of residence for prevention of danger according to 「Act on the Performance of Duties by Police Officers」 comprehensively include cases where police officers may need to enter places of residence in an urgent manner. Efforts to prevent danger by police officers rely on prediction and expectation of future events. Particularly, in cases of entry into places of residence for prevention of danger, police officers are often required to decide whether to enter within a short period of time in urgent situations. Spending enough time for detailed interrogation and deliberation may result in failure in preventing damage or harm. Whether concrete danger is present is often unclear in real life situations. It is questionable whether a situation where concrete presence of danger is suspected yet uncertain would qualify for requisites for entry and exit of places of residence under Article 7 (1) of 「Act on the Performance of Duties by Police Officers」. Furthermore, it is worth discussing whether the level of danger that currently qualifies as requisites for entry and exit under Article 7 (1) of 「Act on the Performance of Duties by Police Officers」 needs to be lowered to prevent occurrence of concrete and further danger in advance. This paper considers necessary requisites for entry and exit of places of residence without a warrant for prevention of danger.