수사목적 불심검문 사안(事案)의 판단 법리

대법원 2006. 7. 6. 선고 2005도6810 판결; 대법원ﾠ2014. 12. 11.ﾠ선고ﾠ2014도7976ﾠ판결을 대상으로

This study examines what it is like to be the Court’s Ruling about investigative stop and frisk. In this article I discussed also the differences between the provisions of the Korean Stop and Frisk and that of the other countries such as U.S.A., Germany and Japan. The police officer used to stop and frisk for purposes of investigation when the circumstances justify suspicion but fall short of probable cause. The suspected might be arrested only if there was something close to probable cause for the police officer to believe that he had committed an offense. However, criminal trials has been required to exclude illegally obtained evidence from investigative stop and frisk. According to the Court’s Ruling, any investigation, having been taken place before recognition process, could be considered as a part of the investigation scope. The investigative stop might be regarded as investigative activities. There, the excessive violation of human rights should be strictly forbidden. As a result, the more neutral scrutiny of a judge might be required in trials about investigative stop. Therefore the rule of law doctrine has to be respected as follows. Firstly, the rights of the people shouldn’t be restricted excessively to maintain safety and order of public, but the fundamental human rights must be protected. Secondly, the privacy and freedom of people are citizen’s privilege to enjoy his social lives. Thus no citizens shall not be unfairly or illegally violated by the police power. Lastly, We must always keep attention to protect the rights of the people in those investigative activities from being unfairly infringed by the police authority.