마약범죄에 대한 위장수사 법제화와 제도적 정당성에 관한 쟁점 고찰 - 위장수사제도 규정의 선행적 보완 필요성을 중심으로 -

법제화와 제도적 정당성에 관한 쟁점 고찰 | 175 입법연구【ABSTRACT】 A Study on the Legalization of disguised investigation system in Drug Offenses KIM HAEMI* With the introduction of a disguised investigation system for digital sex crimes in 2021, discussions have been raised to introduce a disguised investigation system for drug crimes. Crimes are also appearing in new patterns with the change of the times and the development of technology, so the investigation is limited because it is difficult to cope with traditional investigation methods alone. Drug crimes are characterized by covert and secretiveness, such as digital sex crimes, and are becoming increasingly covert and are conducted in online spaces where contacts and transactions are difficult to access based on anonymity. Before discussing the expansion of disguised investigations on drug crimes, it is necessary to first analyze and supplement the problems of the current disguised investigation system. It is pointed out that the disguised investigation system is originally in a tension between investigative efficiency and constitutional legitimacy. Originally, the disguised investigation is not completely separated from the trap investigation, but overlaps the concept. The trap investigation has originally been used as a comprehensive concept of strategies that use deception and tactics in investigations. Disguised investigations also use a deceptive means of 'disguise', so they have a common aspect. The problem is that although the uniqueness of the disguised investigation is recognized, it is difficult to find independent indicators of illegality, such as when the disguised investigation is illegal and justification requirements. It is subject to the judgment of the illegality of the trap investigation called 'criminal induction'. Although there is a possibility that the disguised investigation itself may be a criminal induction type, the rule that "in this case, the fake investigation is legal" only superficially discusses and covers the nature of the problem. Therefore, the fake investigation system needs to be supplemented in order to function systematically and stably so that normative control can operate. In addition, the problem of lack of independent judgment of illegality may lead to stronger problems in the investigation of drug crimes in which criminal intentions are more problematic. This paper considered legislative improvement measures to strengthen risk control when introducing a disguised investigation system in drug crimes. As an alternative, this paper proposes clarifying the definition of disguised investigations and distinguishing them from false investigations. In addition, it suggests specifying procedural rules for false investigations and strengthening regulatory controls over disguised investigations in drug-related crimes under the Special Act.