공법 : 함정수사의 적법성 판단기준과 법적 효과 = Criteria for Evaluating the Legality of Entrapment and It`s Legal Effect

다국어 초록 (Multilingual Abstract)

Entrapment means an investigation method in which an undercover law enforcement agency or its representative instigates or abets an offense in order to arrest a criminal and collect evidence. It is usually applied to covert offenses involving crime rings such as narcotics, organized crime, bribery, prostitution, and gambling, among others. Entrapment investigations can be divided into a type where a person with no criminal intent is led to commit a criminal act by the undercover investigator (crime induction-type), and a type where a person with criminal intent is given the opportunity to commit the crime by the undercover investigator (provision of opportunity-type). When the first type of entrapment is considered in the light of the d ue process of law, it violates the requirement of properness. The problem is whether the second type of entrapment can be recognized as lawful. The views on the subject can be largely classified into two perspectives: the view that, while crime induction-type entrapment is unlawful, provision of opportunity-type entrapment is lawful, and the view that while entrapment, even provision of opportunity-type, is unlawful in principle, exceptions can be made to allow its usage in some investigations of narcotics, bribery and organized crime, among others. However, when we consider that the necessity of entrapment is primarily recognized for crimes such as narcotics crimes or organized crime, the view that provision of opportunity-type entrapment is permissible depending on the type of crime being investigated will necessarily result in the conclusion that almost all provision of opportunity-type entrapment is lawful, which is not valid reasoning. In short, although both crime induction-type and provision of opportunity-type entrapment should be considered unlawful in principle, it is still the case that a review of the criteria used for evaluating their lawfulness or unlawfulness is necessary. Although the Supreme Court did not allow crime induction-type entrapment in the past based on its status as an unlawful investigation method, it held the opinion that in cases where the committing of the crime was only made easier by the investigator, or it was simply the case that an opportunity was provided by the investigator, this should not be considered entrapment and was allowed. But it recently took the position that provision of opportunity-type entrapment is not allowed in principle, and it may still be permitted on a exceptional basis. There are currently also many divergent arguments surrounding entrapment. There is a view that entrapment should be divided into crimel induction-type and provision of opportunity-type, and only crime induction-type is unlawful (Subjective Test). And there is an opinion that emphasized the actions that the investigator took in order to ensnare the defendant(Objective test). Also there is a view which takes into account both the subjective and the objective tests in order to determine the lawfulness of the entrapment (combined test). Determining the lawfulness or unlawfulness of entrapment using a combined objective and subjective test appears to be appropriate. However, if both tests should be applied to determine legality, it may result in a disadvantage to the defendant because even when a law enforcement agent has deceived the defendant, depending on method or degree, the deception could be accepted as legal. Therefore, the most reasonable method of judgment is that if, within the combined test, either the subjective test or objective test can be applied, and the entrapment was found to be unlawful according to the test, then the entrapment should be considered unlawful. Regardless of whether or not someone has forethought, if the investigation procedure violates the due process of law, or else provided a strong enough motivation or temptation to cause even an average person to commit a crime, the entrapment should be considered unlawful.