강제채뇨의 적법성과 영장주의 그리고 절차조건

Abstract

Investigational compulsory urination is a method of investigation that forcibly extract urine from a person’s body through a catheter. This has been a question of whether it can be allowed or not as a method of investigation that harms human dignity, given that it brings about personal encroachment, such as humiliation, along with physical pain. The Supreme Court''s case confirmed that forced recruitment should be deemed to be allowed in accordance with due process if it is deemed inevitable for criminal investigations. Even though forced sampling of urine is recognized, the procedural conditions should also be strictly applied and complied with in proportion to the gravity of the infringement of basic rights of forced sampling. However, the Supreme Court says that while the legal nature of forced sampling of urine is the nature of both seize search and expert evidence, it is also possible to be treated by a single warrant of seize and search. These Supreme Court''s opinion seems to make losing substantial meaning of the principle of warrant requirement and due process. It cannot be allowed that investigative agency takes a compulsory sampling of urination by only a search and seizure attached with the condition that a doctor should perform it in a medical manner, because this creates an ungrounded warrant for internal body under current law.