피의사실공표죄에 관한 연구 -검사의 불기소(기소유예)처분 사건의 검토를 중심으로-

Abstract

Crime investigators, who commit crime(hereinafter ‘the crime’) by making public the facts of a suspect before request for public trial by a prosecutor’, shall be punished by imprisonment for not more than three years, or suspension of qualifications for not more than five years under Criminal Act of article 125 in Korea. This article, however, has been de-facto dead since its enactment in 1953 because there have been no one who was indicted by prosecutors. This paper analyzes the case where the prosecutor of Ul-san District Prosecutor's Office in July of 2020 decided not to initiate public prosecution against police officers who investigated a suspect who forged pharmacist license and made up prescription. This research tries to fathom out how prosecutors decide on the issue of whether ‘the crime’ was made or not. As a matter of fact, it has been highly controversial as to the protected benefits and requirements of ‘the crime’. While some commentators argue for human rights of crime suspects and investigative function of government, others propose a suspect’s right to fair-trial for its protected benefits. This research by reviewing the Ulsan case found that the prosecutor decided that the police officers committed ‘the crime’ in violation of suspect’s personal rights and investigative functions of the government resulting in illegality of the crime, and argues that the prosecutors’decision must not be based on the internal regulation but on the relevant law which allows justification for publication of the facts of a suspect by investigative officials. Based on the argument, this paper proposes enactment of the new law.