경찰관직무집행법상 보호조치에 관한 연구 (A Study on the Protection of the ‘Act on the performance of duties by police officers’)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 32권 / 4호 / 89 ~ 112페이지
· 저자명 : 박창석

초록

Article 4, paragraph 1 of the law of enforcement by policy officer regulates that, subject to the reasonable judgment on a suspicious behavior or other surrounding circumstances, if a police officer finds a person who apparently has substantial reasons deemed necessary for an emergency aid as well as corresponding to either of and at the same time in a worry of causing a hazard to the life/body/properties of himself or the others due to being delirious or drunken, or a person attempting suicide, or a missing child, or a patient, or an injured etc (hereinafter referred to as “protective action target”), he shall take appropriate actions such as requesting an emergency aid to a health and medical institute or a public aid association or protecting the protective action target in a police office.
However, There are some issues in respect with the actual protective actions taken by a police officer under the existing law of enforcement by police officer.
First, the scope of relief objects under Article 4, First, the scope of relief objects under Article 4, paragraph 1, sub-paragraph 2 of the existing law of enforcement by police officer seems too narrow. In other words, the scope of “missing child” is limited to “a lost child”.
Second, even though a police officer takes an emergency aid or a protective action in the actual site, it may correspond to an illegal protective action if it is in breach of the principle of the police officer's passive purposes.
Third, if a police officer does not take any protective actions for a drunken or delirious person, their lives may in danger, or if he leaves unattended or negligent for a missing child, a patient, or an injured who are unable to be protected by any guidances such as parents, a spouse, siblings etc, the police officer may be determined as illegal and responsible for the unlawful actions due to his nonperformance.
Forth, that law prescribes that a police officer shall take his protective action in consideration of the event that a patient, an injured etc rejects an emergency aid as well as in consideration of the availability of a neighboring doctor, and the consciousness status of the patient and the injured etc. However, it may not be righteous to determine whether they are conscious and normally discern by the arbitrary judgement of the police officer.
Fifth, the protective action targets may not be determined uniformly and with the time limit. There may be cases difficult to determine comprehensively and respectively in consideration of characteristics/contents and degrees of the detailed protective measurement, and the timing to find objectively, protective measures and authorities by a police officer, and the rescuee or the extent required of the protective measurement for the protege etc.
Sixth, It is not allowed and illegal in nature to temporarily protect the rescuee in a jail or at the standby room for a suspect or to put a drunken or a delirious person in a place other than a protection room or the stabilization room. In addition, it shall be corresponding to the illegal seizure in practice to protect a person other than a protective action target such as a minor injured, a drunken or delirious person, a patient, and a suspect, and, in particular, a person requiring protection in a protective room of a police office.
As improvement measures to resolve such problems regarding the protective actions by the policy officer, the followings may be suggested: First, to expand the scope of the protective action targets under the law of enforcement by police officer. That is, it may be desirable to expand the scope of the “missing child” to the kidnapped, the abandoned child, the mentally disabled, the lost child etc.
Second, to be based on the objective determination of a police officer following “reasonable judgement” or “substantial trust” etc in order for him to take the protective actions.


Third, to grant the responsibilities of intention or negligence for the official performances by the governmental office, if his negligence of performance or the authority of protective actions are deemed very unreasonable in term of his authority performance of the protective actions.
Forth, when a police officer takes emergency aids for a patient and an injured etc, he shall use the substantially reasonable judgment not based on his arbitrary judgment but based on the ordinary police officer's judgment, and the determination of emergency shall be based on the emergency or urgency of the status of the protective measure target, and the aids shall be based on the events that the lives, bodies and properties of himself or the others are in a risky status etc.
Fifth, the protective measures by the police officer shall be allowed to the minimum extent within the scope of applicable laws and regulations for its purpose, requirements, targets, procedures and methods etc.
Sixth, the police officer shall do his best in order to prevent any infringement on human rights in advance, which may be caused by such protective actions.
Seventh, to demand the installation of the protective room for such protection targets as the protective measure in a police office is to temporarily imprison a person and restrict his personal freedom.

영어초록

Article 4, paragraph 1 of the law of enforcement by policy officer regulates that, subject to the reasonable judgment on a suspicious behavior or other surrounding circumstances, if a police officer finds a person who apparently has substantial reasons deemed necessary for an emergency aid as well as corresponding to either of and at the same time in a worry of causing a hazard to the life/body/properties of himself or the others due to being delirious or drunken, or a person attempting suicide, or a missing child, or a patient, or an injured etc (hereinafter referred to as “protective action target”), he shall take appropriate actions such as requesting an emergency aid to a health and medical institute or a public aid association or protecting the protective action target in a police office.
However, There are some issues in respect with the actual protective actions taken by a police officer under the existing law of enforcement by police officer.
First, the scope of relief objects under Article 4, First, the scope of relief objects under Article 4, paragraph 1, sub-paragraph 2 of the existing law of enforcement by police officer seems too narrow. In other words, the scope of “missing child” is limited to “a lost child”.
Second, even though a police officer takes an emergency aid or a protective action in the actual site, it may correspond to an illegal protective action if it is in breach of the principle of the police officer's passive purposes.
Third, if a police officer does not take any protective actions for a drunken or delirious person, their lives may in danger, or if he leaves unattended or negligent for a missing child, a patient, or an injured who are unable to be protected by any guidances such as parents, a spouse, siblings etc, the police officer may be determined as illegal and responsible for the unlawful actions due to his nonperformance.
Forth, that law prescribes that a police officer shall take his protective action in consideration of the event that a patient, an injured etc rejects an emergency aid as well as in consideration of the availability of a neighboring doctor, and the consciousness status of the patient and the injured etc. However, it may not be righteous to determine whether they are conscious and normally discern by the arbitrary judgement of the police officer.
Fifth, the protective action targets may not be determined uniformly and with the time limit. There may be cases difficult to determine comprehensively and respectively in consideration of characteristics/contents and degrees of the detailed protective measurement, and the timing to find objectively, protective measures and authorities by a police officer, and the rescuee or the extent required of the protective measurement for the protege etc.
Sixth, It is not allowed and illegal in nature to temporarily protect the rescuee in a jail or at the standby room for a suspect or to put a drunken or a delirious person in a place other than a protection room or the stabilization room. In addition, it shall be corresponding to the illegal seizure in practice to protect a person other than a protective action target such as a minor injured, a drunken or delirious person, a patient, and a suspect, and, in particular, a person requiring protection in a protective room of a police office.
As improvement measures to resolve such problems regarding the protective actions by the policy officer, the followings may be suggested: First, to expand the scope of the protective action targets under the law of enforcement by police officer. That is, it may be desirable to expand the scope of the “missing child” to the kidnapped, the abandoned child, the mentally disabled, the lost child etc.
Second, to be based on the objective determination of a police officer following “reasonable judgement” or “substantial trust” etc in order for him to take the protective actions.


Third, to grant the responsibilities of intention or negligence for the official performances by the governmental office, if his negligence of performance or the authority of protective actions are deemed very unreasonable in term of his authority performance of the protective actions.
Forth, when a police officer takes emergency aids for a patient and an injured etc, he shall use the substantially reasonable judgment not based on his arbitrary judgment but based on the ordinary police officer's judgment, and the determination of emergency shall be based on the emergency or urgency of the status of the protective measure target, and the aids shall be based on the events that the lives, bodies and properties of himself or the others are in a risky status etc.
Fifth, the protective measures by the police officer shall be allowed to the minimum extent within the scope of applicable laws and regulations for its purpose, requirements, targets, procedures and methods etc.
Sixth, the police officer shall do his best in order to prevent any infringement on human rights in advance, which may be caused by such protective actions.
Seventh, to demand the installation of the protective room for such protection targets as the protective measure in a police office is to temporarily imprison a person and restrict his personal freedom.

참고자료

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