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정금천(Jeong Keum-Cheon) 한국형사법학회 2006 刑事法硏究 Vol.26 No.-
Agent provocateur means all preliminary countermeasures and deceptive way of investigation in which the investigating organization hides its identity on its own or using the source of information. This agent provocateur has been used to investigate the crimes such as drug related crimes or prostitution.<BR> In spite of usefulness of the method, there are serous problems that the method has possibility to conflict with the principle of guarantee of human right. And the agent provocateur stands between two conflicting values, defense of society and guarantee of human right. agent provocateur occurs only when the criminal design originate with the officials of the Government, and they implant it in the mind of an innocent person. So the agent provocateur has the possibility to violate the human right.<BR> From this point of view, we need a judgement standard of illegality of agent provocateur which do not infringe on the human right. And we must find out the suitable line which permitted limit in the due process and also study on the mutual relation between standard of illegality and legal effect of agent provocateur.<BR> This concern prompted a lot of discussion about how to control the agent provocateur. A series of proposals have been made, like the control through the judicial procedure, the internal control by investigating organization, the punishment of the abettor of trap as abetting criminal, and so forth. Meanwhile those discussions have not been occurred at one time, but separately. Consequently, no theoretical consistency has been demonstrated as to the way of control. This dissertation tries to put forth the arguments proposed previously and review what relevance those arguments have respectively.<BR> In defining the agent provocateur, this writer suggests in this paper that the cause should be added to the subject of the agent provocateur, the abettor of trap should be punished as the abetting criminal, and the entrapped person should be found not guilty in the Court from the perspective of judicial law, considering that such a person caught in the agent provocateur is dismissed of the responsibility in terms of substantial law.<BR> This is significant and meaningful in that it tries to match the procedure law and substantial law. Moreover, this paper also looked at what significance the latest rulings of Supreme Court on the agent provocateur have in terms of judicial procedure.<BR> It is important to clearly define the boundary of punish ability because the agent provocateur is one of ways to investigate crimes despite its inherent problems. In that sense, this paper is meaningful and significant in term of the legalization of agent provocateur.
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