警察法上 危險防止에 관한 硏究

Abstract

The exercise of police power for danger prevention gives top priority to the prevention of injury occurrence. However, the controversy over the concept of danger has hitherto focused on the limit establishment, namely which scope is to be a target of prevention in the danger prevention area of the Police Act. Especially, an active intervention of administrative institutions, whose duty is to prevent danger, is required by the emergence of a new concept of danger in today's fields of environmental law, science and technology. Moreover, the themes of recent discussion have been developed from the problems over the concept of danger, especially external danger, the exercise of police power on the suspicion of danger and further the concept of danger in the Police Act. It is true that in such theories, there is also any attempt to distinguish between the executive police and the Order Administrative Office, but agreement normally seems to be reached between the dangers in the general Police Act and individual acts. For example, no clear distinction can be made between the dangers in the preventive, environmental, scientific and technological areas of criminal acts. After all, the police's duty for maintaining public peace and order is forced to be performed through individual measures for danger prevention, and the preventive police action, which aims at the prevention of danger against the protection interest in the Police Act, can be performed on the premise of a precise understanding of danger in order to carry out a legitimate preventive police action. Also, the danger in the Police Act has, in its core, a prediction related to the future development of factual situation, and uncertainty is attached to the prediction, but the court's post evaluation must be made of the prediction related to the development of factual situation to get rid of the uncertainty. Furthermore, the police danger, once taking place, leads to such a far-reaching and great injury against national, social and personal law interests, unlike in the past that it should be sought how to materialize and efficientize the prevention of danger in the Police Act. Indeed, this arouses worry over the violation of rights by the abuse of police power, but the worry can be sufficiently removed by the limit theory of police power, the accumulation of legal cases, and especially the court's control, so the protection legal interest (Schutzrechtsgut), such as national, social or personal legal interest (Rechtsgut), should be protected through the exercise of police power for the active prevention of danger. Therefore, the present study aims to mainly inquires into the dangers in the Police Act and the exercise of police power discussed in our Police Act-related literature, legal cases, etc., more clearly present the interpretation standards on the danger concept in the danger prevention as a requirement for the exercise of police power, and further present the specific de lege ferenda on danger prevention. To attain such goals, this study limits its scope to the Police Act's danger prevention, a preventive action in the exercise of police power, which includes Police Act's danger concept and types, exercise of police power for danger prevention, means for danger prevention, interpretation and de lege ferenda on danger prevention, etc. On the premise of the above purpose and scope, this study consists of Chapter 1 introduction, Chapter 2 concept and types of danger in the Police Act, Chapter 3 exercise of police power for danger prevention, Chapter 4 specific means for danger prevention, Chapter 5 interpretation and de lege ferenda on danger prevention and Chapter 6 conclusion. Chapter 1 introduction deals with the study's purpose, scope, direction, method, etc. Especially with regard to the purpose, it emphasizes the importance of the Police Act's danger prevention and the necessity for legal discussion in modern nation, and presents the themes of discussion. Chapter 2 deals with the concepts and types of danger in the Police Acts. First, it examines the concepts of danger, obstacle and injury in German and Korean Police Acts. In addition, it examines the legal meaning in each constitution element by dividing the minimum common components of danger into loss, sufficient probability and time accessibility, and the interpretation problem of danger as uncertainty concept. Second, it examines danger types, such as concrete, external, suspicious, latent, wound and abstract dangers, focusing on the external and suspicious dangers hitherto discussed. In this connection, it is investigated how they are discussed in German theories and legal cases, included in the danger area of the Police Act and evaluated in light of the Police Act. Chapter 3 examines the requirements, grounds and limits of police power exercise traditionally discussed, focusing on the danger prevention in the Police Act. In terms of police power requirements, it examines the uncertainty concepts, those of public peace and order maintenance, which are to be understood even as expansion of discretion, how theses concepts can be included in the principles of legal administration and harmonized with the demand of guaranteeing people's basic rights in their interpretation and progress. In terms of police power exercise's grounds, it examines whether to exercise police power for danger prevention based on the general empowerment clause, if our current Police Officer Duty Performance Act also has no individual empowerment clause like the exemplary draft of German Unified Police Act. Also, it examines the relations between individual and general empowerment clauses. In terms of police power exercise's limit, it examines the limit theory of police power exercise, based on the principle that it is possible for national purpose to be attained by the exercise of public power under today's practical legalism, within the principle of legalism on the premise of guaranteeing people's basic rights. Chapter 4 deals with the concrete means for danger prevention in our Police Act. In this connection, it examines the questioning(Article 3), the protective measures(Article 4), the prevention of danger occurrence (Article 5), the prevention and curb of crimes (Article 6), the entrance and exit for danger prevention (Article 7), the use of police devices (Article 10), as means for danger prevention in the general Police Act. Subsequently, it examines the means for danger prevention in the Special Police Act by subdividing them into the fields of health, calamity management, traffic, environment, architecture, business and management of dangerous materials, assembly and demonstration, and foreigners. Chapter 5 presents the interpretation and de lege ferenda on danger prevention. First, it presents the interpretation standards for more clear interpretation of danger concept as uncertainty concept, and the interpretation by the general empowerment clause in Clause 5, Article 5 of the Police Officer Duty Performance Act. In terms of de lege ferenda on danger prevention, it greatly presents two methods to efficientize danger prevention in the Police Act: the separate establishment of general law's grounds for practical exercise of police power; the large-scale revision of related regulations in the current Police Officer Duty Performance Act. The former has a merit of making nothing in legal system or content contradictory by unifying the system of danger prevention. However, it has a difficulty in legal technique that one should unify individual laws which govern individual areas, so it is to be taken into consideration in the long term, but actually difficult to do so. Accordingly, Chapter 5 focuses on the large-scale revision of the Police Office Duty Performance Act. In this connection, it comprises the concrete specification of general empowerment clause and duty scope, the establishment of basic principles in the police power exercise, the concrete specification of police responsibility, the introduction of performance dues system, the revision and supplementation of individual empower clauses, etc. Chapter 6 summarizes the legal problems over danger prevention in the Police Act and presents solutions. Today, high levels of danger in our society make it much more necessary and important for us to exercise police power for the purpose of preventing danger. Accordingly, state power is indeed somewhat strengthened, but people's basic rights should be also protected so much by state. As mentioned earlier, the exercise of police power, aimed at maintaining public peace and order, has both sides of the same coin: guarantees personal basic rights on the one hand, but may infringe on them on the other. Therefore, the both sides should be in harmony with each other in the future.