사회 내 보안처분의 집행과정에서 거짓말탐지기 검사의 적정성 검토

Sexual violence crimes are a major target of security measures in our country. Since the enactment of Act on Electronic Monitoring sexual violence offenders have been subject to attachment orders, and the Act on Pharmacologic Treatment of sex offenders sex impulse can also impose such orders on patients with sexual perversion who have committed sexual crimes and are deemed to have a recidivism risk of re-offending the same type of crime, such as sexual violence. Probation is necessarily imposed in conjunction with these individual security measures. Act on Electronic Monitoring and Act on Pharmacologic Treatment of sex offenders sex impulses stipulate the crime of violations of observance. It is said that polygraph testing is used in the process of enforcing these dispositions. In addition to the probation officer involved in the execution of the attachment order, the probation officer of the rapid investigation team is also recognized as a special judical police officer. The rapid investigation team probation officer may also investigate violations of the Act on Probation observance requirements, including observance requirements for attachment orders and drug treatment orders. In this process, there is a possibility that guidance & surveillance procedures and investigation procedures will be mixed. In the case of individual security measures such as parole, if observance requirements are violated during execution, the main disposition is revoked and the inmate returns to the original facility confinement status. Nevertheless, the attachment order and drug treatment order can have procedures for cancellation of the main disposition, extension of the period, and addition or modification of observance requirements which can take place in addition to the punishment for violating observance requirements. Therefore attention is required to comply with the principle of due process of law, as it is not clearly distinguished whether the polygraph testing is part of guidance & surveillance or part of the investigative procedure. In the procedure for executing individual security measures, there are observance requirements for which evidence of violation has already been obtained, rendering a polygraph testing ineffective. Furthermore, if observance requirements are imposed according to the wording of the law, using abstract and ambiguous concepts such as ‘bad habits’, ‘doing good deeds’, ‘those who may commit crimes’, and ‘make an effort’, it raises doubts about whether the polygraph testing can accurately measure the truthfulness of statements. If the occasion for conducting a polygraph testing is a violation of observance requirements, it is necessary to stipulate in the law measures to guarantee the right to refuse to testify and the right to receive assistance from an lawyer, taking into account that investigative procedures for securing evidence may be conducted under the guise of guidance & surveillance. Through above review we concluded that polygraph testing require a more cautious approach based on the fundamental principle of compliance with the principle of due process of law.