경찰작용에 있어서 기본권보호의무의 적용에 관한 연구

Abstract

The exercise of police powers should be minimal, and legal limitations on their exercise needs to be set because police intervention in the form of administrative actions that impose duties on citizens limits people's basic rights. Therefore, police powers must be exercised in accordance with strict legal limitations. Also, discretion exercised by police has to be used reasonably. So far, most of the discussion on the exercise of police powers has been about passive limitations so as to limit the exercise of police powers and avoid its abuse. It is true that such passive limitations on the exercise of police powers are still important. However, the scope of police duties is expanding with the request for change of the practical concept of police powers as danger becomes more common and specific concepts of danger which require police intervention have altered. In addition, social requests for protecting people's basic rights by actively exercising police powers are growing. This is because there has been infringement of fundamental rights with the absence of the exercise of police powers. Because these social changes are spreading awareness that police should play both roles in violating and protecting basic human rights, there are calls for the necessity of discussion on the active limitations on the exercise of police powers. The statement "That government is the best which governs least" came because it was considered in the past that government's non-intervention was the best way to ensure fundamental rights. In society in the 20th century, however, other emerging factors like social power and individuals also violated basic human rights, and thus the duty of nations to protect its citizens against them was highlighted. Therefore, all national organizations should guarantee basic human rights and among them the administration has a direct relation with fundamental human rights. The exercise of police powers has a critical meaning because police powers directly influence personal security. Accordingly, the nation's duty to protect fundamental rights provides a basis for the police's duty of active intervention. This thesis aims to conduct systematic research on the exercise of police powers focused on the nation's duty of protecting basic human rights which is the basis for the necessity of the police's active intervention as a measure to be recognized as not an invader but a protector of basic human rights following the recent request for the protection through the active intervention of police forces. Furthermore, it also intends to provide suggestions for improvement to fulfill the duty of protecting basic human rights under the limitations of the active exercise of police forces, which would enable police, as a guardian for citizens, to carry out its duties faithfully.