경찰의 무기사용에 관한 사례분석 연구 -경직법상 상당성ㆍ필요성ㆍ합리성을 중심으로-

초록

In the 2000s, a series of gun robbery cases happen across the country of Korea including not only large cities like Seoul, Daegu and Daejeon but small- and middle-sized cities like Gyeongju, Seosan and Gunsan. Moreover, lots of international violence organizations with guns flow into Korea, where the culprits use their gun to commit crimes. So, it is unavoidable for the police to use guns in repressing robbery and other brutal crimes using guns. Excessive use of guns should be restrained, but permission must be given for police officers to use guns in such an urgent situation as to protect the life and property of the people and the officers themselves. In this regard, this research aims to give concrete directions to indistinct criteria of judicial precedents for police to use weapons and to compare domestic criteria with those of foreign countries, with a view to proposing systematic and detailed criteria. To do that, investigations have been made into the theoretical background of this research, concepts and laws for the Korean police to use weapons, and requisites for the police to use weapons. In order to analyze judicial precedents about the police's use of weapons, legal use of weapons has been separated from illegal use. The analysis has contributed to understanding the criteria for police officers to use weapons. Furthermore, in order to analyze the content of the judicial precedents, the police's use of weapons has been classified into legal use and illegal use of weapons. First, the characteristics of suspects are analyzed with a focus on ① their sex, ② number of them, ③ drinking or non-drinking, ④ casualties, ⑤ kind of their crime, ⑥ kind of weapons they possess, ⑦ aspects of possessing and using the weapons, ⑧ resistance to police officers, and ⑨ warning and changes after warning shots. Second, the characteristics of suspects are analyzed with a focus on ① their sex, ② number of them, ③ asking for support or not, ④ oral order, ⑤ warning shots, ⑥ ball firing, ⑦ distance of shots, and ⑧ aiming directions. Third, the characteristics of the scene are analyzed with a focus on ① timing, ② existence of a third party, ③ location of the scene of action, and ④ imminence of the harm. Lastly, the present author gives suggestions for the nation's policies. First, legislation on the police's use of weapons need be improved. So, it is necessary that the relevant laws should more clearly stipulate the conditions and limits for the police to use weapons. And some considerations should be taken into the preparation of a manual which proposes objective criteria for the scope of permission to use a gun police officers can follow on a criminal spot. Furthermore, regulations should be newly established to compensate for the damages caused by the police's use of weapons, schemes prepared to resolve personal disadvantages, and ex post factor relief systems reformed. Second, systems for the police to use weapons need be improved. Current education and training on the use of weapons should be upgraded with more realistic programs like a simulation. Moreover, alternative weapons need be introduced and/or developed so that police officers may use other weapons than a gun to overpower criminals, with a view to minimizing the police's damages. Third, justifications for the police's use of weapons need be improved. To do that, citizens' recognition of the police's use of weapons should be enhanced. In addition, PR activities need be intensified to advertise the said justifications. Fourth, as a way to improve a system to treat the police after their use of weapons, consideration should be taken into new establishment of the provisions about compensation for damages and into schemes to get rid of personal disadvantages. Fifth, schemes are suggested to introduce gun and other alternative weapons in relation to the police's use of weapons. Of the above suggestions, what is the most needed from the perspective of the reality are compensation for loss and compensation for damages. The role of the compensation system is clearly demonstrated in judicial precedents. In Korea, since there is no remedies for the victims of legal use of weapons and/or others, the dead person's bereaved family or the injured person can be compensated by the government only when illegal use of weapons is sentenced. The features of sentences given by the court seem to demonstrate that the court has recognized there is a problem in such a system of compensation for damages, especially in the case of the suspect being dead. Because the current criminal law stipulates such crimes as will bring on capital punishment: rebellion, foreign trouble, murder, robbery murder, killing and others. Compared to the crime cases of interference with a government official in the execution, theft and fleeing, it is known that if the case results in death, even though there is fault or not on the part of the suspect, criteria for the court tends to give severer sentences. It is necessary to revise relevant laws and regulations in such a manner that in compensating for damages, individual police officers should be exempted from responsibility and instead the government should assume the responsibility, which shall be clearly stated in the provisions of the laws.

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