국문요약 ·······································1
❘제1장❘ 서 론 ∙ 강태경 ·······························7
제1절 연구의 목적 ····································9
제2절 연구의 구성 및 방법 ·······································14
❘제2장❘ 수사기관의 인권보장역량에 관한 논의 동향
분석 ∙ 강태경 ·······················································17
제1절 수사기관의 인권보장역량에 관한 언론보도 분석 ···············19
1. 검찰･경찰 개혁 이슈 ···································22
가. 검찰 권력 비대화에 대한 비판 ·································22
나. 수사권 조정 등 검찰･경찰 관계 재설정 ··························23
2. 인권 보호 기관으로서의 검찰･경찰의 이미지 개선 요청 ·························25
가. 인권 보호 기관으로서의 검찰의 이미지 개선 ···················25
나. 인권 보호 기관으로서의 경찰의 이미지 개선 ·····················26
3. 검찰･경찰의 인권규범 위반 관행 ····························29
가. 집회･시위 과잉 진압 및 부적절한 채증 ···························29
나. 강압수사 ·················································32
다. 과도한 장구 사용 ···················································34
4. 사회적 약자의 인권 보호 ······································34
5. 수사기관 구성원의 인권 문제 ··································36
제2절 수사기관의 인권보장역량에 관한 학술적 논의 동향 분석 ···············37
1. 검찰･경찰 권한 분배 ············································38
가. 기소편의주의 견제 ·····················································39
나. 수사권조정 ·······················································40
다. 영장청구권 ·····························································44
2. 수사 단계별 개선 사항 ·········································47
가. 범죄발견 활동 관련 쟁점 ········································48
나. 수사진행 관련 쟁점 ·············································50
다. 개인정보보호 ···························································57
라. 수사 외 경찰활동과 인권 보호 ·······························59
3. 범죄피해자 및 사회적 약자에 대한 대응 방식 ··········································61
가. 범죄피해자 ···························································61
나. 사회적 약자 ···························································65
4. 경찰 조직 문화 ···················································67
5. 인권교육 ·······················································70
6. 기타 ························································71
제3절 수사기관의 인권보장역량에 관한 개혁 권고 분석 ···························73
1. 법무･검찰개혁위원회 권고안 검토 ···································73
2. 경찰개혁위원회 권고안 검토 ········································75
제4절 소결 ························································78
❘제3장❘ 국가인권정책과 경찰･검찰의 인권보장역량
강화 ∙ 김한균 ·······················································81
제1절 제1차 국가인권정책기본계획과 경찰･검찰의 인권보장역량강화 정책 ····84
1. 정책 내용 분석 ·················································85
가. 제1차 국가인권정책기본계획의 형사정책적 의미 ·····················85
나. 제1차 국가인권정책기본계획에서 경찰 관련 정책 ················87
다. 제1차 국가인권정책기본계획에서 검찰 관련 정책 ··················87
2. 정책 내용 평가 ···········································87
가. 경찰의 정책이행 평가 ········································88
나. 검찰의 정책 이행 평가 ········································91
제2절 제2차 국가인권정책기본계획과 경찰･검찰의 인권보장역량강화 정책 ····93
1. 정책 내용 분석 ····················································95
가. 제2차 국가인권정책기본계획의 형사정책적 의미 ······························96
나. 제2차 국가인권정책기본계획에서 경찰 관련 정책 ······························97
다. 제2차 국가인권정책기본계획에서 검찰 관련 정책 ····························97
2. 정책 내용 평가 ··························································98
가. 경찰의 정책이행 평가 ························································99
나. 검찰의 정책이행 평가 ··············································100
제3절 제3차 국가인권정책기본계획과 경찰･검찰의 인권보장역량강화 정책 ····102
1. 정책 내용 분석 ·······················································103
가. 제3차 국가인권정책기본계획의 형사정책적 의미와 특징 ························104
나. 제3차 국가인권정책기본계획에서 경찰 관련 정책 분석 ··························106
다. 제3차 국가인권정책기본계획에서 검찰 관련 정책 분석 ··························107
2. 정책 내용에 따른 과제 전망 ····································109
제4절 소결 ························································110
1. 국가인권정책기본계획 하에서 수사기관 인권 보장 역량 강화 정책의 성과 ··· 111
가. 인권에 관한 사회적 이해 폭 확대 ····································111
나. 인간의 기본적 자유와 권리를 존중하는 문화 정착 ··································112
다. 성과발전을 위한 수사기관의 인권보장역량 강화 정책상 시사점 ············112
2. 국가인권정책기본계획 하에서 수사기관 인권보장역량 강화 정책의 한계 ··· 113
가. 인간의 기본적 자유와 권리를 존중하는 생활 문화 정착 ·························113
나. 한계극복과 개선을 위한 수사기관 인권 보장 개선보완정책상 시사점 ···114
❘제4장❘ 경찰･검찰의 인권규범 위반 의심 사례 분석
∙ 김경찬･서선영･김동현･김두나･김재왕･류민희･
박한희･조혜인･최현정･한가람 ································117
제1절 경찰･검찰의 인권규범 위반 의심 사례 유형 분석 개관 ················119
1. 분석 대상 사례의 유형 및 범위 ···································119
가. 경찰 관련 사례 유형 및 범위 ····································119
나. 검찰 관련 사례 유형 및 범위 ································122
2. 분석의 필요성 및 분석 방법 ············································123
가. 분석의 필요성 ·····················································123
나. 분석 방법 ···························································126
제2절 생명과 신체의 보호 및 안전 영역 ····························130
1. 경찰 관련 사례 분석 ····················································130
가. 부당한 임의동행･강제연행 ·········································130
나. 과도한 불심검문 ········································134
다. 체포 과정에서의 인권 침해 ··················································134
마. 구속사실 미통지에 따른 인권 침해 ····························143
바. 진술거부권 미고지 조사 인권 침해 ···························145
사. 압수 관련 인권 침해 ·········································146
아. 신체수색 관련 인권 침해 ··············································147
자. 부당한 업무처리에 따른 인권 침해 ··································150
차. 부당한 보호조치 인권 침해 ············································150
카. 과도한 물리력 행사 및 경찰장구 사용 등 ··························153
타. 폭행행위 등 인권 침해 ·············································162
파. 피해자 관련 인권 침해 ·················································169
하. 전투경찰 순경의 의료조치 미흡 인권 침해 ·····················172
2. 검찰 관련 사례 분석 ·············································173
가. 외국인 피의자의 접견･통신권 미보장 인권 침해 ·························173
나. 부당한 강제소환 인권 침해 ·········································173
다. 형집행장 절차 위반 인권 침해 ································174
라. 검찰조사 계구 사용 인권 침해 ······························175
마. 전자충격기 과잉 사용 인권 침해 ···································176
제3절 사생활의 비밀과 자유 영역 ·································177
1. 경찰 관련 사례 분석 ··················································177
가. 언론 보도 관련 인권 침해 ·········································177
나. 부당한 피의사실 고지 인권 침해 ·····························181
다. 기소 중지자 탐문수사 인권 침해 ········································182
라. 전과사실 누설 인권 침해 ·············································182
마. 부당한 전과조회 및 개인정보유출 인권 침해 ··························183
바. 경찰의 조사과정 중 사생활 침해 ·································183
사. 북한이탈주민 신분노출 인권 침해 ·························184
아. 야간 자택 방문조사 인권 침해 ···································185
자. 미성년자를 통한 부모의 개인정보 취득과 진상보고서 공개 ···················185
차. 지위를 이용한 개인정보 열람･누설 ····································187
카. 미동의 촬영 증거수집 행위 인권 침해 ·······················188
2. 검찰 관련 사례 분석 ···············································188
가. 보도자료에 의한 인권 침해 ·············································188
나. 대질조사시 전과 관련 질문 인권 침해 ·································189
다. 범죄사실 및 디엔에이 채취대상자 정보유출 인권 침해 ··························190
3. 경찰 및 검찰 공통 사례 분석 ·····································191
가. 참고인 조사 과도한 개인정보 수집 ····································191
나. 전과사실 포함 체포･구속 통지 인권 침해 ···························191
제4절 인간의 존엄과 가치 및 행동자유권 등 기본권 영역 ·····················193
1. 경찰 관련 사례 분석 ···············································193
가. 경찰의 부적절 지명통보 인권 침해 ·······························193
나. 검거경위 허위보고에 의한 인권 침해 ··································194
다. 경찰의 욕설･폭언 등 인권 침해 ··········································195
라. 유치장 개방형 화장실 인권 침해 ···································198
마. 과도한 수갑 사용･수갑 노출 인권 침해 ····························199
바. 심야조사 인권 침해 ··········································200
사. 탈북자 사실공개 및 부정적 발언 인권 침해 ································204
아. 교육대상자 모자 등 착용제한 인권 침해 ··································205
자. 속옷탈의 인권 침해 ···············································206
차. 현장검증 시 피의자 얼굴노출 인권 침해 ····························206
2. 검찰 관련 사례 분석 ··············································208
가. 비하발언 ····················································208
나. 서명날인강요 인권 침해 ···············································209
다. 부당한 교도소유치 인권 침해 ··········································209
라. 성폭력 사건 피해자 조사시 인권 침해 ································210
마. 검찰청 구치감 화장실 차폐시설 미비 인권 침해 ·······················211
제5절 소수자 및 사회적 약자 등 보호영역 ··························212
1. 성소수자 관련 사례 분석 ············································212
가. 성소수자 수사과정에서의 인권 침해 ································213
나. 피의사실과 무관한 성적지향, 성별정체성의 누설 ························216
다. 동성애자 대상 숙박업소에 대한 표적수사 ·························217
라. 트랜스젠더 피의자의 유치장 수용 ·······································218
마. HIV/에이즈 감염인에 대한 인권 침해 ·········································219
2. 장애인 관련 사례 분석 ················································220
가. 사법절차에서의 청각장애인에 대한 편의 제공 미흡 ····················220
나. 지적장애인에 대한 충분한 설명 없이 진술거부권 고지 ··················222
다. 신뢰관계인 동석 없는 지적장애인 피의자신문 ·································224
라. 신뢰관계인 없는 상태에서의 지적장애인 피해자 조사 사례 ···················226
마. 시각장애인에 대한 과도한 보호장구 사용 ··························228
바. 경찰의 염전노예 피해자 신고 무시 ································229
사. 장애인 복지시설의 학대 등에 의한 인권 침해 사례들 ················232
아. 노예노동 피해자에 대한 수사미진 ··························233
3. 여성 관련 사례 분석 ···········································235
가. 여성 피의자에 대한 경찰의 성희롱 ······················235
나. 유치장 임산부 및 산모 보호조치 미흡 등에 의한 인권 침해 ·················236
다. 브래지어 탈의 요구에 의한 인권 침해 ·····························238
라. 성폭력 피해자 신원노출 인권 침해 ································239
4. 아동･청소년 등 미성년자 및 노인 관련 사례 분석 ························240
가. 미성년자 피의사건 조사에서 보호자의 조력을 받을 권리 관련 사례 ···· 240
나. 미성년자 피해자 보호조치 미흡 등 부당한 조사 ······················242
다. 미성년자 불법구금 등 부적절한 조사로 인한 인권 침해 ·························244
라. 미성년자 탐문수사 관련 인권 침해 ·······························245
마. 노인복지시설 강제노동 및 금전착취 인권 침해 ····························246
5. 외국인 관련 사례 분석 ····································247
가. 인종차별적 조사와 발언 ····································247
나. 외국인 강제연행에 의한 인권 침해 ································248
다. 외국인 보호소 직원의 외국인 폭행 인권 침해 ·····················249
6. 응급구호 미흡 관련 사례 ·····································250
제6절 집회･시위 경비업무 관련 영역 ·························252
1. 집회 방해 ···············································252
가. 1인 시위 방해로 인한 인권 침해 ····························252
나. 경찰의 집회 장소 점거로 집회 방해에 의한 집회의 자유 침해 [별첨 2] ·····253
2. 통행 방해, 제지 등 관련 ················································254
가. 경찰의 부당한 불심검문･통행방해에 의한 인권 침해 ······························254
나. 집회 참가자들의 인도통행봉쇄, 해산명령 및 최루액 발사에 의한 인권 침해 ··· 255
다. 집회를 마친 후 다음 집회로 이동하려는 집회참가자들의 통행을 제지한 행위에 의한 인권 침해 ····256
라. 과도한 통행제한에 의한 인권 침해 ······································257
3. 차량 차단 및 천막철거 등으로 인한 집회의 자유 침해 ·························259
가. 방송차량 진입차단에 의한 집회의 자유 침해 ·····························259
나. 집회 차량을 견인하여 집회 개최 무산시킨 집회의 자유 침해 ···············259
다. 집회천막에 대한 위법한 강제철거 ·································260
라. 집회 방한용품 탈취행위에 의한 집회의 자유 침해 ··································261
4. 금지통고 규정을 무리하게 해석하여 장소경합 등을 이유로 금지통고한
인권 침해 ·····································································262
5. 과잉진압과 폭행 등 공격행위 ·································263
가. 후퇴하는 사람에 대한 공격 ·········································263
나. 지켜보는 사람, 사진촬영하는 사람에 대한 공격 ···························264
다. 폭행을 만류하는 사람에 대한 공격 ································264
라. 넘어진 사람에 대한 공격 ···················································265
마. 여성과 아동에 대한 공격 ··········································266
바. 의료진에 대한 공격 ··································267
6. 물리력 남용과 공격적 경찰 장구 사용 ·····················267
가. 경찰봉의 위법한 사용에 의한 인권 침해 ······················267
나. 위법한 살수차 사용에 의한 인권 침해 ······························269
다. 색소물포 사용에 의한 인권 침해 ·········································269
라. 경찰들이 집회 시위 진압 중 방패로 피해자의 안면을 폭행한 인권 침해 ··· 270
7. 집회 시위 진압경찰의 식별표시 미부착 내지 은폐에 의한 인권 침해 ···· 271
8. 채증 ················································272
가. 대화하고 있는 시민에 대한 위법한 채증에 의한 인권 침해 ···················272
나. 요건을 갖추지 않은 위법한 채증에 의한 인권 침해 ··················273
9. 변호인 조력권 침해 ·············································274
10. 노동쟁의･파업 현장에서 경찰의 인권 침해-OO자동차 농성 및
진압 과정 중 인권 침해 ·············································275
가. 회사측 용역경비 등의 폭행 등 범죄에 대한 경찰의 방조행위 및
기본권 보호의무 위반 ·············································275
나. 식수 공급 중단과 의약품 반입 및 의료진 출입 차단에 대한 경찰의
묵인과 국가의 기본권 보호의무 위반한 인권 침해 ······················276
다. 경찰장비(최루액, 전자충격기, 다목적발사기) 사용에 의한 인권 침해 ··· 278
라. 경찰의 진압 과정에서의 방패, 경찰봉, 개인소화기 등에 의한 폭행 ······280
11. 행정대집행, 농성에서의 경찰 경비 ····································282
가. 행정대집행 과정에서 통행로 봉쇄 및 이른바 ‘고착’으로 인한
이동권 제한과 이로 인한 신체의 자유 침해 ·····················282
나. 행정대집행 과정에서 진압을 한 경찰의 식별표시 미부착 및
경찰복 미착용에 의한 인권 침해 ·····························283
다. 밀양 송전탑 반대 주민들에 대한 욕설에 의한 인권 침해 ·······················284
라. 경찰의 무리한 진압에 의한 인권 침해(용산 참사) ···················285
12. 소수자 영역 ········································286
가. 성소수자 ···································286
나. 장애인 ································287
제7절 국가인권위원회 권고를 통해서 본 검찰･경찰 인권옹호 기능 진단 ··· 292
1. 경찰 인권교육 권고 영역 ········································292
가. 범죄발견 단계 ···········································292
나. 수사진행 단계 ··········································294
다. 개인정보보호 ····················································302
라. 사회적 약자 보호 ········································307
마. 물리력 및 경찰장구 사용 ·········································310
바. 기타 인권 침해 및 불법행위 ···································314
사. 집회･시위의 자유 보장 ·················································316
아. 전투경찰 의료기관 협력체계 구축 필요 ·························317
2. 검찰 인권교육 권고 영역 ·········································317
가. 범죄발견 단계 ···············································317
나. 수사진행 단계 ···········································319
다. 사회적 약자 보호 ··············································321
라. 개인정보보호 ········································324
마. 기타 인권 침해 및 불법행위 ·····························326
제8절 소결 ··············································327
❘제5장❘ 수사기관 인권영향평가제 평가∙ 구정우･김두년･정진원 ············335
제1절 수사기관 인권영향평가제도 개관 ···························337
1. 인권영향평가제도 개관 ······································337
가. 인권영향평가의 도입 배경 ····························337
나. 인권영향평가 방법 및 활용 ···································338
다. 인권영향평가 운영 현황 ··········································339
라. 우리나라 인권영향평가의 개선점 ·······································341
2. 수사기관 인권영향평가제도 해외 사례 분석 ·························342
가. 영국 경찰 인권 안내서 ···········································342
나. 국제사면위원회 경찰관의 인권에 대한 10가지 지침 ··············347
다. 유엔인권최고대표부 법 집행에 관한 인권 지침서 ···················350
라. 유엔 인권최고대표사무소의 경찰에 대한 인권 훈련 안내서 ···············353
마. 스코틀랜드 평등･인권영향평가 기본 운영 지침 ······················357
바. 스코틀랜드 공공기관 평등영향평가 ······························362
사. 영국 학교 내 평등 영향평가 지침서 ···························365
아. 태국 FTA 인권영향평가 ······································369
자. 소결 ·················································371
제2절 경찰의 인권영향평가제도 ·································372
1. 경찰 인권영향평가제도 도입 논의 경과 및 선행연구 ····························372
가. 경찰 인권영향평가제도 도입 경과 ······························372
나. 경찰 인권영향평가제도 수립 관련 선행연구 동향 ································374
2. 경찰 인권영향평가제도 분석 ········································377
가. 경찰 인권영향평가지표 체계 및 항목 분석 – 기존 연구의 한계 ············377
나. 경찰 인권수사매뉴얼: 인권수사 체크리스트 및 보완점 ·························379
다. 경찰 인권영향평가: 수사과정 및 절차를 중심으로 ······················382
3. 경찰 인권영향평가제도 운용 방향 ························418
가. 경찰 인권영향평가 추진 체계 ···························418
나. 경찰 인권영향평가 주체 ······································422
다. 경찰 인권영향평가 방법 ······································424
4. 소결 ·················································426
제3절 검찰 수사과정의 인권영향평가 ·························428
1. 영향평가 관련 법제의 개관 ·····································428
2. 검찰 수사과정의 인권영향평가제도 운영방안 ······················430
가. 검찰의 인권관련 업무 개관 ······································430
나. 인권영향평가의 조직구성 ··································431
다. 수사과정 인권영향평가 절차 ···························434
라. 검찰의 인권영향평가 보완사항 ································436
마. 인권영향평가 사전평가 기초자료 및 체크리스트 작성 ··············437
3. 소결 ···················································445
❘제6장❘ 결 론 ∙ 강태경 ·····································447
참고문헌 ············································457
Abstract ···················································473
별첨자료 ·············································475
[별첨 1] 퀴어퍼레이드 금지통고 사건 ·····························475
[별첨 2] 대한문 화단 앞 집회 방해 사건 ··························479
[별첨 3] 용산 화재 참사 철거민 검거 과정에서의 경찰 폭행 ···············483
[별첨 4] 용산 참사 철거민 심야조사･장시간 조사대기 ··················486
[별첨 5] 용산 철거민등에 대한 경찰의 무리한 진압 ······················491
[별첨 6] 기자회견 참여자 체포과정 중 폭행 ···························495
[별첨 7] 속옷탈의 및 실명공개에 의한 인권 침해 ·····················497
[별첨 8] 지적장애인에 대한 충분한 설명 없는 진술거부권 고지 ··········499

대한민국 ｢헌법｣ 제10조는 “모든 국민은 인간으로서의 존엄과 가치를 가지며, 행복을 추구할 권리를 가진다. 국가는 개인이 가지는 불가침의 기본적 인권을 확인하고, 이를 보장할 의무를 진다.”라고 규정함으로써 인권의 보편성과 불가침성을 선언하고 동시에 국민의 인권에 대한 국가의 보장 의무를 밝히고 있다. 이러한 ｢헌법｣ 조항이 상징적 선언에 머물지 않고 시민 생활의 규범으로서 그 힘을 발휘하면서 우리의 인권의식은 나날이 높아가고 있다. 이에 국가의 인권 보장 의무가 그 어느 때보다 중요하게 여겨진다. 이러한 흐름은 최근 활발하게 논의되고 있는 검찰･경찰 개혁의 궁극적 목표가 국민의 인권 보호에 있다는 점에서도 확인된다. 이러한 시대적 요청에 발맞춰 우리 연구진은 검찰･경찰이 인권 보호 기관으로서제 역할을 제대로 수행하고 있는지 종합적으로 점검하였다. 이를 위해 검찰･경찰의 인권보장역량과 관련된 최근의 사회적･학술적･정책적 논의들을 망라하여 검토하였고, 최근 10년간 내려진 국가인권위원회의 결정 중 검찰･경찰 관련 결정례를 취합하여 쟁점별로 분류하고 분석하였다. 또한 경찰의 인권영향평가 제도에 대한 비판적 검토를 토대로 인권영향평가의 개선안을 도출하고, 도입 예정인 검찰의 인권영향평가에 대한 시사점을 제시하였다. 다만, 검찰･경찰 개혁 및 역할 조정 작업이 여전히 치열한 논쟁 속에서 진행되고 있는 상황에서 검찰･경찰의 인권보장역량 강화를 위한 구체적인 정책을 도출하는 데에는 분명한 한계가 있어 아쉬움이 남는다.이 아쉬움에도 불구하고 본 연구가 검찰･경찰의 인권보장역량 평가에 관한 기초자료로서 가치가 있기를 바라고, 부디 눈 밝은 독자들이 이 글을 통해서 검찰･경찰의 인권보장역량 강화를 위한 정책적 방향을 모색하는 데 도움을 얻을 수 있기를 기대한다.