언론의 범죄보도와 피의사실공표의 문제

Abstract

The purpose of the crime of publication of criminal facts is to protect the rights of those who are investigated for their criminal charges. This is the actualization of the prinicple that under the presumption of innocence, even a suspect accused of a crime should have his or her rights protected unitl the outcome of the trial is confirmed after prosecution. In reality, however, there are no actual cases of punishment for the crime of publication of criminal facts. Thus, many say that this became useless due to loss of its effects. And this may due to the problem of self-implementing punishment since investigative authority is both the investigator and the actor of crime in this matter. There is also a practical grievance that if this is strictly applied, it will virtually make impossible for the media to report on criminal cases. Furthermore, in the cases with high public interest such as the cases of political corruption or violent crimes, there is a problem of reducing the scope of the people's right to know if the media cannot report on criminal investigations before the prosecution is filed. In this matter, the disclosure of the accused by the investigative authority should not be subject to absolute punishment under the criminal law. Rather, it should be decided by balancing the two constituional values: the public interest and the right to know/freedom of the press. And in order to achieve this, it was suggested that the crime of publication of criinal facts should be revised to harmonize the relationship between the human rights of the suspects and the people's right to know. First, it is necessary to include general public as the actor of the crime of publication of criminal facts. On the other hand, this inclusion of general public should be argued in connection with the decriminalization of the crime of defamation with true facts. Also, it is necessary to enact special laws that stipulate the categories of investigation facts that the investigative authorities can announce and the coverage scope and method that the media can follow. Or, the establishing and amending the rule exceptions in crime of publication of criminal facts can be considered as well. Finally, even if the press release is permitted, such information regarding the press release should be given to the suspect in order to privde an opportunity to oppose to it. If the contents of the case are leaked by an investigator or damaged by the media's reckless reporting in the course of an investigation, the aggrieved party needs to actively respond through civil and criminal law suits.