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A Study on the Problems and Improvement of Investigation in the Act on Anti-TERRORISM for the Protection of Citizens and Public Security

Vol.2 (No.1) 2017
Author
admin
Date
2017-06-30 11:05
Views
548

Abstract


The provisions of the “Act On Anti-Terrorism For The Protection Of Citizens And Public Security(Act on Anti-Terrorism)” of 2016, which are concerned with the limitation of the human rights, have been continuously dis-cussed since the 18th National Assembly, and the provisions of the current law have balanced at least the security rights of the people and the fundamental rights of the human rights. However, there is a system deviating from the center of the controversy even though there is a possibility of infringing on the fundamental rights of the people. It is the right of investigation by the staff of National Intelligence Service prescribed in Articles 2 and 9 of the Act on Anti-Terrorism.
The investigation of the “Act on Anti-Terrorism” is similar to the preliminary domain investigation in Germany, but it is futuristic in that it aims to prevent crime, but at the same time, And the process of searching for relevant information in a situation where the existence of the allegation is uncertain. The problem is, in principle, that there is no provision on the subject, scope and limitations of the right to investigate, even though the exercise of the investigation, which has a precautionary nature, may infringe the fundamental rights of the people as de-scribed above. First, this study explores the legal nature of the right to investigate “Act on Anti-Terrorism” and opens up the possibility of applying the due process principles.
Next, I pointed out the problems of criminal law in the field investigation and submission order system, which is the concrete type of investigation, and suggested ways to improve them. In other words, the specific type of investigation is substantially similar to the compulsory disposition, and the lawful procedure such as the constitutional warrant is stifled as the cause of the investigation. In this study, we explored problems and remedies for field investigation and submission order, which are highly similar to those of forced disposal.

Keyword:Terror, Investigation, On-Site Investigation, Requirement of Submission, Due Process
  • In recent, restorative justice has become a new paradigm for criminal justice in response to crime. In the existing criminal justice system, punishment is a legal consequence of crime, which has the nature to impose harm on the crime committed by the actor. On the other hand, restorative justice focuses on conflict parties to resolve conflicts. In this view of the world, the problem of crime is the wound of the community and the damage of the network. More fundamentally, this view of illicit behavior implies an interest in the healing of the affected parties, including the perpetrator and the community, as well as the victim. So the parties(the perpetrators, the victims, the community members, etc., in relation to the recovery) participate in the process of resolving conflicts and set and pursue the goal of restoring and reintegrating conflicts. The recovery of the perpetrator is also as important as the recovery of the victim, and it is necessary to accept the perpetrator as a member of the community again Therefore restorative justice emphasizes active support and involvement of the community in the process of recovery. From this point of view, we consider that social treatment is appropriate for the realization of ideology of restorative justice rather than treatment in facility at the correction stage, and we seek to utilize social treat-ment as restorative sanction by practice program of restorative justice. In this respect, the process of acknowledging responsibility for their actions and trying to heal the damage they have with them will lead to regret and responsibility for the past. In addition, you can expect the preventive effect, which is the purpose of punishment. On the other hand, "restorative justice differs from the existing crim-inal justice in that it pursues its goals and means, so many theorists of restorative justice have found that the restorative programs they want to practice are uncritically absorbed into the existing criminal justice system, the problem is that it is simply a solution to the problem-solving type of the problem by restoring the victim's damage to the victim. Therefore, in the aspect of recovery of the main keyword which is the center of restorative justice, the criminal apologizes for himself and takes a restorative duty, so that the result of his / I must start with. It should not be forgotten that in this process, the promise of restoration of the damage between the parties is the starting point for restoring the relationship, not the purpose of distressing the sufferer.
    Keyword:Restorative Justice, Restorative Sanction, Community Sanction, Criminal Sanctions, Restoration
  • Today, the digital revolution has completely changed all areas of society, and the evidence of crime has also become digitalized. Therefore, it is no exaggeration to say that the success or failure of investigation to reveal the truth depends on how digital evidence is secured and recognized. In this way, our society is rapidly changing into a digital society, but the law has not been completely restored, and it maintains the analog legal system of the past. In other words, the provision related to digital evidence is only Article 106(3), (4) and (313) of the Criminal Procedure Act. However, these few words alone cannot solve all the problems related to digital evidence. This study is based on the evaluation of the problems of Article 106(3) and (4) of the Criminal Procedure Act and recently revised Articles 313 and 314 of the Criminal Procedure Act, the purpose is to present a new legislative alternative. Current deficiencies in the acceptability of digital evidence should be addressed through amendments to the law. First of all, the digital evidence corresponding to the specialization is subject to the existing special law, so there are certain limitations on the ability of evidence. However, there are exceptions to the special law, I believe that it is reasonable to allow valuable evidence that is essential to substantiate the fact. And any digital evidence that does not contain a statement should be able to acknowledge evidence capability only if it is proven authentic to establish the truth and credibility of the data. That is, errors in systems and soft-ware, and authenticity requirements to ensure the reliability of digital evidence exposed to the risk of unauthorized access, has proven that there has been no such error or danger. The accuracy and reliability of the system and the procedures are mainly presented as such authenticity verification methods. However, more specific requirements for the authenticity of digital evidence should be laid out in a manner that is based on technical standards established by experts, but can be easily applied to legal judgments
    Keyword:Digital Evidence, Search and Seizure, Participation Rights, Cooperation Duty, Password Submission Order System
  • The provisions of the “Act On Anti-Terrorism For The Protection Of Citizens And Public Security(Act on Anti-Terrorism)” of 2016, which are concerned with the limitation of the human rights, have been continuously dis-cussed since the 18th National Assembly, and the provisions of the current law have balanced at least the security rights of the people and the fundamental rights of the human rights. However, there is a system deviating from the center of the controversy even though there is a possibility of infringing on the fundamental rights of the people. It is the right of investigation by the staff of National Intelligence Service prescribed in Articles 2 and 9 of the Act on Anti-Terrorism. The investigation of the “Act on Anti-Terrorism” is similar to the preliminary domain investigation in Germany, but it is futuristic in that it aims to prevent crime, but at the same time, And the process of searching for relevant information in a situation where the existence of the allegation is uncertain. The problem is, in principle, that there is no provision on the subject, scope and limitations of the right to investigate, even though the exercise of the investigation, which has a precautionary nature, may infringe the fundamental rights of the people as de-scribed above. First, this study explores the legal nature of the right to investigate “Act on Anti-Terrorism” and opens up the possibility of applying the due process principles. Next, I pointed out the problems of criminal law in the field investigation and submission order system, which is the concrete type of investigation, and suggested ways to improve them. In other words, the specific type of investigation is substantially similar to the compulsory disposition, and the lawful procedure such as the constitutional warrant is stifled as the cause of the investigation. In this study, we explored problems and remedies for field investigation and submission order, which are highly similar to those of forced disposal.
    Keyword:Terror, Investigation, On-Site Investigation, Requirement of Submission, Due Process