함정수사의 위법판단기준과 법적 효과 = A Study on the Standard of Illegality and Legal Effect of Entrapment Investigation

다국어 초록 (Multilingual Abstract)

Investigation is the first step of a criminal procedure. The criminal proce- dure performs important function, which actualizes of one nation and secures human rights.
But recent crime report shows a tendency not only to be complex in quality but also to be increased in quantity. It becomes more difficult to apprehend crime itself, to collect evidence, and to arrest criminals because the crime is envolved with consensual, invisible and habitual. Here comes the necessity of tricky, undercover method, so-called entrapment investiga- tion, and most investigation agencies of many countries use this method nowadays.
Entrapment investigation dose harm to guarantee of human rights, so the control of entrapment investigation is important matter. In United States, the Supreme Court established ‘defense of entrapment’ through its judicial precedents to prevent law enforcement authorities from manufacturing crimes. There are many theories on the control of entrapment investigation.
We must find out the suitable theory which can be harmonized with our current condition of law system, and also study on the mutual relation between standard of Illegality and Legal Effect of Entrapment investigation.
There are some ways for the control of illegal entrapment investigation. First, to remove the possibility of illegal investigation at the beginning stage, reasonable guidelines like the Attorney General’s Guidelines on FBI Undercover Operations should be prepared. Second, if the entrapment investigation has already been practiced, penal responsibility of illegally induced defendant should be denied. Third, add to the ways above, we can take approval of penal responsibility of instigator into consideration.

참고문헌 (Reference)

1 "화이트칼라범죄와 함정수사 기법" 청림출판 1988

2 "형사소송법 강의" 박영사 2005

3 "함정수사의 형사소송법적 고찰" 조선대 법학논총 2001

4 "함정수사의 위법성에 관하여" 66 (66):

5 "함정수사의 위법성 기준과 법적 효과에 대한 재검토 형사법연구 제14호"

6 "함정수사의 규제"

7 "함정수사와 비난가능성"

8 "함정수사와 법원의 대응" 88 (88):

9 "함정수사에 관한 법적 고찰" 경찰대학 경찰학논집 제2편 1978

10 "함정수사에 관하여" 74 (74):

11 "조직범죄와 형사법" 법문사 2004

12 "and Ethics of Entrapment" 1982

13 "Wayne R/Israel" Jerold H criminalprocedure1985

14 "Robert M/Brodin" Mark S costitutionalcriminalprocedure1992

15 "Michael" The Police And Criminal Evidence Act 1984 1990

16 "Causation and Intention in the Entrapment Defense" 1981

17 "Andrew" Principles of Criminal Law 1991