미국에 있어서 수사기관에 대한 허위진술의 법적 규제

• 영문명: The Criminal Regulation of False Statement before Investigatory Agency in USA
• 발행기관: 한국형사정책학회
• 저자명: 최병천(ChoiByungChun)
• 간행물 정보: 『형사정책』형사정책 제15권 제2호, 311~333쪽, 전체 23쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2003.12.01

영문 초록

False statements by suspects and witnesses are widespread in criminal investigation. Since the Supreme Court held that a false statement before a investigatory agent did not fall within the fraudulent obstruction of the performance of governmental affairs(section 137 in Criminal Act), the suspect have been granted an unlimited freedom to lie in effect. A study on the section 1001 in title 18, U.S.C., which provides that anyone who falsifies a material fact, makes false statement or writing shall be fined or imprisoned not more than 5 years, have been conducted to consider in drawing a reasonable line between the false statements permitted and punished. Purpose of this section is to protect Government from fraud and deceit and reach of it covers all materialy false statements, including non- monetary fraud, made to any branch of Government. There had been some exceptions called “exculpatory no” doctrine in applying this section, before the United States Supreme Court abrogated the judgements adopting it in Brogan v. United States in 1998. According to this doctrine, a mere denial of wrongdoing does not constitute a crime considering the privelidge against self-incrimination. Whether a particular false statement falls within the “excalpatory no” exception appears to be a matter of the circumstances of the case and the law of the Circuit pertaining to the exception. The the United States Supreme Court ruled out “exculpatory no” on the ground that by its terms, this section covers any false statement and the Fifth Amendment prohibits only compulsory self-incrimination, which does not exist where a suspect has to respond to questioning. And, the court held that the spirit of the Fifth Amendment did not confer a privilege to lie. Even though we need to adopt this provision to secure proper enforcement of law, some considerations should be taken. If a provision criminalizing every false statement were created, most of our people would be shocked. We are too much accustomed to denial of crime and the moral ideal can’t be achieved by law. A desirable new provision dealing with false statement should be restricted to fradulently obstructing one.

목차

1. 문제의 제기

2. 미국 연방형법 1001조

3. 면책적 부인의 원칙(Exculpatory No Doctrine)

4. Brogan v. United States 사건

5. 결론

ABSTRAC