수사ㆍ재판을 받는 미결수용자의 사복착용을 제한하는 ‘형의 집행 및 수용자의 처우에 관한 법’ 제24조 제1항과 제82조의 위헌성 검토

International human rights standards about legal status and treatment of pretrial detainees state ‘the presumption of innocence’ and their right. Especially, Article 88 of ‘the Standard Minimum Rules for the Treatment of Prisoners’ states that they have the right to wear plain clothes and therefore they can take fair trial and investigation by excluding dishonor and prejudice which they are similar to prisoners from the beginning for the provision. Article 82 of the Criminal Administration and Detainee’s Treatment Act also permits them to wear plain clothes during a trial or an investigation. But presently, most detainees wear jail uniform during a trial or an investigation. It is because Article 22(2) of the old Criminal Administration Act restricts with ‘self-payment’ and ‘prison director’s approval’ when they wear plain clothes during a trial or an investigation. Such restrictions succeeded like that in Article 24(1) and 82 of the Criminal Administration and Detainee’s Treatment Act which interchanges the old Criminal Administration Act and enforces from 22 Dec. 2008. The purpose of legislative policy of Article 24(1) of the Criminal Administration and Detainee’s Treatment Act of restricting their right to wear plain clothes during a trial or an investigation with ‘self-payment’ may be justified in respect of the limit of a state’s budget. But, taking into account the scale of economic power of the Republic of Korea and the method that collects and utilizes an castoff clothing, it can be another way that they obtain plain clothes. If their right to wear plain clothes during a trial or an investigation where the need for protection of basic rights is compelling depends on the degree of economic power, it is to lack the rationality of a political measure in that a state treat discriminatively them who can’t do ‘self-payment’ against them who can do ‘self-payment’ and nonrestraint suspects and the accused who can always wear plain clothes and adversely treat them who is treated differently with the prisoner as him. And the purpose of legislative policy of Article 82 of the Criminal Administration and Detainee’s Treatment Act that restricting their right to wear plain clothes with ‘prison director’s approval’ may be justified in respect of the prevention of escape of the detainees investigated or tried for serious crimes. However, despite the prevention of a escape can be achieved by use of instruments or additional guards, restricting them to wear plain clothes during a trial or an investigation where the need for protection of basic rights is compelling is to lack the rationality and suitability of a political measure. Their right to wear plain clothes is especially emphasized the necessity of protection in light of ‘the presumption of innocence’ recognized by our constitution and international law of human rights. And so their right’s legal interest is more superior than that of the restrictions of Article 24(1) and 82 of the Criminal Administration and Detainee’s Treatment Act. Therefore, Article 24(1) and 82 of the Criminal Administration and Detainee’s Treatment Act of restricting their right to wear plain clothes with ‘self-payment’ and ‘prison director’s approval’ violates the principle of proportionality in Article 37(2) of the constitution for being inconsistent or unnecessary or excessively restricted and the presumption of innocence, the rights to equality, personality and pursuit of happiness derived from human dignity and worth, and right to fair trial. If their right to wear plain clothes during a trial or an investigation is important constitutional right, a state which respects and protects the constitutional basic rights must remove restrictions of ‘self-payment’ and ‘prison director’s approval’ of Article 24(1) and 82 of the Criminal Administration and Detainee’s Treatment Act and accept everyone to wear plain clothes prepared and supplied by its budget without any restrictions.