현행 형법상 피의사실공표죄 해석과 입법론 - 벌금형 부과와 과실범 규정 신설을 중심으로 -

Abstract

By whom is the public announcement of the suspected facts revealed openly before the prosecution process? Is it the media? Is it an investigative agency? Or is it their joint work? There seems to be no need for further explanation. No innocent people believe that the public announcement of the suspected facts is made by either the media or investigative agencies. The law that is ignorant of reality is powerless. Despite various legislative efforts, it is not irrelevant to the ignorance of this law that the crime of publicizing the suspected fact does not exert its normative power in the current legal reality. In order to solve this problem, it is necessary to change the perspective and interpretation paradigm of reality. In other words, it is necessary to face the legal reality related to the public announcement of the suspected facts and develop a critical legal interpretation (theory) based on this, and the correct direction and goal of legislation must be set based on this. If so, what is the reason why the criminal law prohibits the publication of suspected facts before prosecution? What are the legal interests to be protected by prohibiting the act of publicizing suspected facts before prosecution? Criminal law has fundamental values that must be observed. Respect for human rights, which should not be undermined by public opinion polls or a large number of intentions, can be an example. I fully agree with the reason why there is an opinion that reporters and others should be included in the punishment for the crime of publicizing the suspected facts in Article 126 in order to eradicate the public announcement of the suspected facts. However, if the revision is made in a way that includes “explicitly” journalists or stakeholders in addition to investigative officials as the subject of the revision, it may be possible to file a prosecution even if it does not unconditionally include investigative officials. I think the reason the prosecution postponed the indictment in the existing Ulsan whale meat case was because they may not have wanted to receive a judgment through a trial regarding the crime of publicizing the facts of the suspect. If a judgment is made on an investigative agency related to the crime of publicizing the facts of a suspect, it is obvious that the court's judgment will also be applied to the prosecution, which is another investigative agency, even if the case involves a police officer. It is believed that the nature of public disclosure of suspect facts is partly in the nature of trial intervention by investigative agencies. The principle of presumption of innocence must be observed until a suspect or defendant receives a final judgment. We need to go back to basics.