Though substantive enactment on entrapment investigation is not expressed in the current Criminal Procedure Code, the entrapment investigation is relatively and widely used in the investigation such as bribery case, and the problems on its illegality are being constantly raised.
Thus, this paper investigated means and principle of the entrapment, criterion of illegal entrapment and its effects through the precedents, and critically studied such issues.
There are two different forms of entrapment in the precedents on the means of entrapment. The first type of entrapment is that the police offers an individual the opportunity to commit a crime, and another one is that the police offers an individual the criminal intent activity. The entrapment offering the opportunity to commit a crime was excluded from the scope of entrapment investigation. However, the entrapment offering the opportunity to commit a crime was recognized that it was not an illegal entrapment investigation, and nowadays, its entrapment has been recognized as a legal entrapment in some cases. Therefore, the entrapment investment offering the opportunity to commit a crime as well as the entrapment causing the criminal intent activity are recognized as the entrapment investigation. In addition, in the way that concept of “Entrapment crime” rather than “Entrapment investigation” would be rationally recognized for the purpose of arguments of the general entrapment investigation, this paper suggests for the appropriate use of the term.
And regarding criterion of illegal entrapment, a comprehensive theory, comprehensively considering subjective criteria and objective criteria, has been mainly involved in the precedents and majority theory. But actually, comprehensive criterion has not been generally acceptable for the precedents if being recognized as the illegal entrapment, and moreover, comprehensive theory has been acceptable for the legal entrapment, but it needs crucial conditions to consider whether investigative agency or any other person, who conducted criminal activities, engaged in an evil trick or scheme under the connection with certain investigative agencies. For that reason, investigative agency related to investigation and proceedings encourages a person to commit a crime so that the officer can have him/her prosecuted for that crime and in order to impose a criminal penalties, and then if entrapment occurred, investigative agency has been criticized due to its double-blind and act of betrayal to prove that its agency has not directly involved in the entrapment.
Accordingly, this paper emphasizes that an illegal entrapment investigation would be considered on the basis of the specific standards related to the comprehensive theory but rather whether directly involved with investigative agency.
Finally, as the results of the illegal entrapment investigation, the precedents have continued to follow judgement of dismissing public prosecution due to the crux involved in judgement of not guilty in the early time, but exclusionary rule is basically applicable for all the evidences as its rule is expressed and enforced in the current Criminal Procedure Code, and then admissibility of evidence collected from the illegal entrapment investigation is fully denied, and as the results, it makes sense to find judgement of not guilty against the illegal entrapment investigation, and its finding would rationally contribute to the defendant's rights and principle of due process of law. Therefore, this paper suggests that the judgement of not guilty is more pertinent.