피의사실공표죄의 문제점과 개선방안- 사전적, 절차적 예방의 모색 -

Abstract

In South Korea, article 126 (Release of Facts of Suspected Crime) provides 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/her knowledge during the performance of his/her duties, shall be punished by imprisonment for not more than three years, or suspension of qualifications for not more than five years. It was not until the Criminal Act was enacted in 1953 that the crime existed in the Criminal Act. Since the crime of publication of the suspected crime came into force in 1953, there have been rare indictments. In the past 11 years (2008-2018), there were 347 cases of accusation of release of suspected crime, but none have been prosecuted. In fact, it can be said that the effectiveness of the crime of prosecution has been lost. Amendment bills to the crime were submitted to the National Assembly several times, but they failed to pass the National Assembly. Although the problems of public release of suspects continue to intensify, and the current situation in which even amendments have not been properly discussed may be called “legal vegetable state” in our society in relation to the accusations of suspicion. In this paper, while examining these legal issues, we I think that it is necessary to shift the paradigm to ex ante relief procedures rather than ex post sanctions in order to enhance the effective protection of personal rights. In this regard, this paper proposes a remedy in the direction of revising the provisions and procedural protection measures. The main proposal presented in this paper is to limit the release or publication of information obtained through investigations in relation to the public participation trial, not until the end of the first instance. Excessive release of investigation results by investigative agencies, and media reports are highly likely to harm fair trials in not only jury trials but also in bench trials. At this time, there may be controversy over whether or not this infringes or restricts the public's right to know where the charged facts against the accused is restricted before the judgment of the first instance. However, during the course of a trial, there is no need for the investigative agency to provide information through a press briefing. This is because when the public trial begins, the opinions of the defendant and the prosecution are sufficiently expressed in the trial process including the preparation process. Rather, since the media can come in contact with the witnesses' testimony vividly and more accurate information through cross-examination, the people's right to know the truth of a crime and a trial is fully satisfied. Of course, if a trial is conducted privately due to a sexual violence crime or other non-disclosure grounds, there may be problems in terms of the right to know. In this case, it would be appropriate to allow some reporters to enter or to provide information through court publications with no identifying information of the victims. It would be said that the crime of release or publication of the suspected facts is neither an unconstitutional provision nor an unnecessary provision. Foreign countries do not have the same penalties as we do in South Korea, but there are similar penalties in order to prevent contamination of jurors in relation to public participation trials, or some countries have laws punishing the release of the charged facts as a contempt of court. The crime of release or publication of suspected crime need to be reorganized in line with the changed environment, such as the jury trial system which was introduced in 2008 in South Korea. In doing so, we should take into account the people's right to know, the right to a fair trial, and the protection of honor and personal rights as well.