경찰법상 위험방지를 위한 경고의 법적 문제

This study examines various legal issues arising in connection with warnings for the purpose of preventing danger under the Police Act. A warning to a person posing a danger refers to the police informing the person of the legal situation applicable to the person posing the danger, and of the measures the police may take if the danger occurs or is likely to occur. For this purpose, the police may issue a warning to the person concerned, either verbally or in writing. If the police warn the person concerned as a potential criminal, the warning infringes upon the person's personal rights. If the police issue a warning in the presence of a third party, such as a coworker, on the steps of a building, or even to a parent, this clearly infringes upon the person's personal rights. Unless it undermines the purpose of the warning, a verbal warning must be issued out of sight and hearing of third parties. Police action that warns a person not to participate in a rally to avoid being subject to a danger prevention measure restricts the person's right to make decisions regarding participation in a rally, which is protected by the Constitution. Furthermore, freedom of assembly may be restricted if the individual concerned is no longer able to make any rational decision other than following police advice. Police warnings issued to prevent danger can in various ways restrict the fundamental rights of individuals guaranteed by the Constitution, and therefore, the police must have legal authority to enforce such restrictions. Current legal authorizations for warnings issued to prevent danger include § 3 Nr. 1 of the Act on Punishment of Crime of Stalking and § 6 and § 5 I Nr. 1 of Act on the Performance of Duties by Police Officers. In particular, § 5 I Nr. 1 of Act on the Performance of Duties by Police Officers may serve as a legal basis for warnings if a specific danger exists and the subject of the warning, as a police officer, is sufficiently likely to cause harm. If a person subject to an unlawful warning wishes to file an administrative lawsuit regarding the warning, the type of administrative lawsuit the person may file depends on the legal nature of the warning in question. Generally, a warning is merely a factual act, so an party lawsuit is the appropriate form of litigation. However, if a police warning goes beyond simple guidance or information provision and specifically imposes a prohibition on a specific act on the person concerned, it constitutes an administrative act, and therefore a revocation lawsuit is the appropriate form of litigation. The deterrence or chilling effect associated with a warning is intended to influence the decision- making of the person concerned. In this case, the measure should be deemed to expire upon its implementation. Therefore, the type of party lawsuit a party can file here is a declaratory action. For a declaratory action filed by a person against the state to be legitimate, the person must possess a legitimate interest in confirming the illegality. If a party has a legitimate interest in confirming the illegality of a legal relationship, they can seek confirmation of the existence or nonexistence of the legal relationship through a declaratory action. In principle, a legitimate interest in confirming the illegality must be recognized as a legal, economic, or psychological interest that, upon reasonable consideration of the circumstances, can be recognized as worthy of protection. Such interests may be specifically recognized in light of the need to prevent recurrence or restore reputation.