피의사실공표죄(형법 제126조)의 규범적 한계에 관한 고찰 - 형법 제126조의 사문화 현상에 대한 원인분석과 해결방안을 중심으로-

Abstract

It is enacted under Article 126 of the Korean Criminal Act that a person who, in the performance or supervision of, or in the assistance in, functions involving prosecution, police, or other activities concerning investigation of crimes, makes public, before request for public trial, the facts of a suspected crime which have come to his knowledge during the performance of his duties, shall be punished by imprisonment for not more than three years, or suspension of qualifications for not more than five years. But Article 126 is malfunctioning as the situation now stands. There are three major causes for this loss of Article 126´s normative power. First, sociocultural causes are as follows. 1. Commercial Journalism that only takes an interest in the timing for release of the information than the accuracy and social influences of information to release 2. Investigative agency's briefing practice for public relations and a convenience of investigation Next, juridical causes are as follows. 3. the misconception about the object and limitation of the right to know and the abuse of the right Therefore, to recover the normative power of Article 126, we need (1) to expand a range of the crime subject as a requirement constituting a Article 126 from ‘the persons referring to the investigation’ to ‘any body(man)’, (2) to understand exactly about the object and limitation of the right to know and to establish clear-cut lines of juridical permissible standard or limitation, (3) for a law enforcement agency's to strive for a strict application of the law and a severe punishment.