경찰국의 법적 문제에 관한 소고

Abstract

There were many controversies and conflicts regarding the police department established under the Minister of Public Administration and Security, and the constitutionality and legitimacy of the police department, which emerged as the main issue of the controversy, was examined in terms of the principle of popular sovereignty, principles of the administration of the rule of law, and Administrative organization legalism. Since all administrative rights of the Republic of Korea are part of the sovereignty delegated by the people, its legitimacy is based on the principle of popular sovereignty and constitution, and all executive rights belong to the president because the current constitution defines the subject of executive power as the president.
 Since the police authority is included as part of the executive authority and belongs to the president according to the constitution, its legitimacy is based on the executive authority of the president born from the principle of popular sovereignty. And according to the Constitution, the executive powers of the President shall be executed by the Prime Minister and the heads of administrative departments who are members of the State Council under the order of the President with or without deliberation by the State Council. Since police authority is also part of the executive authority of the President, the President, the Prime Minister and the Minister of Public Administration and Security can direct and supervise the exercise of authority by the Commissioner General and public officials under his control in ordinary cases, and in an emergency, delegate authority to the police chief and public officials under his jurisdiction. Therefore, since the establishment of an administrative agency to assist the authority of the President, Prime Minister, and the Minister of Public Administration and Security is constitutional, the police department under the Minister of Public Administration and Security is a constitutional.
 On the other hand, there is a view that the establishment of the National Police Agency is presented as a basis for the independence of the police, arguing that the police department violates the independence of the police. Police independence is a concept that does not exist under the Constitution and is a political slogan. The National Police Agency is an external office established in consideration of the uniqueness of the administration and is only one of the current 18 external offices, not an independent external office composed of the remaining 17 offices and other constitutional principles. Although there is controversy in terms of strengthening the political neutrality of the police, The police department in Ministry of Public Administration and Security, through consultations between the National Police Agency Commissioner and the Minister of Public Administration and Security, and the final settlement of the President of the police personnel in the police department centered on the police force between the National Police Agency Commissioner and the President's Office It is evaluated as a system that strengthens the political neutrality of the police because it can serve as a bridge to convert into transparent police personnel.
 The scope of police power to which the principle of the rule of law is applied is basically a police enforcement action for the public prescribed in the Police Officer's Duty Execution Act, and there is a passive limitation that police power should be exercised for the purpose of protecting the lives, bodies and property of the people. The right to form a police organization, the right to organize a police budget, the right to personnel of police officials, the right to establish police policies, and the right to command and supervise police execution still belong to the president, the prime minister, and the Minister of Public Administration and Security, as stipulated in the Constitution.