국제마약범죄와 함정수사의 한계에 관한 연구

Abstract

The human society has been rapidly developed according to the advances in the means of transportation and the technology of communications. Continued advances in technology and international transportation will facilitate growth in transnational organized crimes. These advances also lead to a lot of criminal problems. In these times transnational organized crimes have become increasingly sophisticated and confidential, with operation that are not constrained by national boundaries. Sometimes they use violence or means to promote and protect common interests and objective. Transnational organized chmes are involved in drug chmes, money laundering, human traffic and illegal entrants etc. Most of the countries concerned with international crimes such as the drug smuggling and terronsm. They have made many efforts continuously to confront and these ongoing problems through cooperation with each other. Nowaday a sudden increase of transnadonal organized crimes creating a threat to the stability and secuhty of the intemational society. Recent crimes show a tendency not only to increase in quantity but to be complex in quality. For example, in case of crimes such as narcotics, contraband, bribery, prostitution, gambling. It becomes more difficult to apprehend crime itself, collect evidence and arrest criminal because the character of the crimes are consensual, victimless and invisible. However narcotic crimes has been continually increasing in parallel with industrialization, internationalization and open policy movement. Also transnational organized crimes has expanded to alarming proportions. It is difficult to find a single definition which can incorporate all the activities and characteristics. Internationalization of crimes make necessary wider international cooperation in various respects. Modern criminal policy is no longer conceivable if it does not include an international elements. Global concerns continue to grow as threats to the safety of society and other problems that arise at the hand of organized crime cannot be solved by any one nation. Therefore the urgency and importance of international cooperation in various sectors is being emphasized more aggressively than ever before. The effective cooperation is necessary to help countries deal the problems of national and transnational organized crimes. International cooperation is based on a compromise between the legal and procedural requirement of domestic legislation and the necessity of promoting efficient cooperation between states for the purpose of fighting to the transnational organized crimes. And international cooperation is based on UN and each nation reflects its own position as much as it can. Korea alse has become a non-permanent member of the UN security council. At this time drug abuse has become a global problem and cooperation between international drug trafficking organizations has escalated and their bonds have strengthened as each country further develops their own anti-drug plans in conjunction with those on an international level. The number of drug abuse is 200,000,000 persons according to the '2007 World drugs Report' and especially the production of drugs increased as it called 'golden crescent' in this area. Generally the public prosecutor's office and police use of entrapment investigation aginst the crimes of narcotics, narcotics, contraband, bribery, prostitution, gambling. Because this method very effective and can solve the crimes that can't find out evidence or witness. Here cornes the necessity of tricky and undercover method so called entrapment investigation and most investigation agencies of many countries use this method nowadays. In spite of usefulness of the method, there are problems that the method has possibility to conflict with the principle of guarantee of human rights and due process of law which is support by constitutional law of the land. Thus entrapment investigation stands between two conflicting values, defense of society and guarantee of human right, and both full control and unlimited permission are not desirable. Now how can we find out the harmonious point two values? In United States, the Supreme Court established 'defense of entrapment' through its judicial precedents to prevent law enforcement authorities form manufacturing crimes. In the view of majority of the court, the public investigators or employees of the Government merely afford opportunities or facilities for the commission of the when the criminal design originates with the officials of the Government, and they implant it in the mind of an innocent person. When the entrapment investigation is recognized as illegal, how can we control the illegal investigation? According to the United States the Supreme Court decisions, if there is evidence that Government agents have induced the accused to commit offense, the defendant should be acquitted unless the Government can prove that he was predisposed to engage in crimes. 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 Operation should be prepared. Second, if the entrapment investigation has alrcady been practiced, penal responsibility of illegally induced defendant should be denied. Third, add to the way above, we can take approval of penal responsibility of investigator into consideration. In Germany, the criminal law enacted about the entrapment investigation and undercover operations. They control the illegal entrapment investigations by this law. Also the Supreme Court of the Germany sentenced some cases that illegal entrapment investigation can't admit and protect a favorable suspects. In conclusion, entrapment investigation has the possibility to violate the human rights, so it have to follow the principle of Constitutional law. And absolutely The Government have to legislate about entrapment investigation, and make the guidelines of undercover agent(include undercover, confidential informants) such as 'Attorney General's Guidelines on FBI Undercover Operation'. I hope that all undercover and suspects will have to protect from illegal entrapment investigation.