무죄추정 관련 헌법재판소 결정에 대한 관견

In this paper I critically reviewed all cases concerning presumption of innocence ruled by the Korean Constitutional Court (hereinafter, referred to as “KCC”) and suggested more reasonable understanding of presumption of innocence in the context of Korean Constitution, Article 27 (4) of which states that “the accused shall be presumed innocence until a judgment of guilt has been pronounced.” I have found 38 KCC cases, among 39,075 cases that KCC has dealt with since it was established, in each of which presumption of innocence was mentioned in the reasoning of its decision. Major contents of presumption of innocence had been formulated during the First Term Court, which had lasted from September of 1988 to September of 1994. The First Term Court characterized presumption of innocence as follows: The principle of presumption of innocence means that the accused, not alone the suspect, should be treated as innocent until proven guilty and therefore any disadvantage to the accused or the suspect should be kept minimal. The Fist Term Court also delivered a court opinion that the principle of presumption of innocence requires that investigations should be conducted without detention of the suspect. However, KCC has acknowledged exceptions of allowing detention of the suspect, which contradicts the above opinion. Successive Term Courts have accepted the First Term Court’s explanation on the characters of presumption of innocence, but each Term Court applied the principle of presumption of innocence in a slightly different way. The Second and the Third Term Courts did not resort much to the principle of presumption of innocence in handling cases. The Fourth Term Court applied the principle of presumption of innocence in addition to the principle of proportionality to cases where liberty rights were argued to be infringed. However, in my opinion, KCC could have reached the same conclusion without mentioning the principle of presumption of innocence, as the way of applying the principle of presumption of innocence is practically the same as the principle of proportionality. The Fifth Term Court abandoned the way of meaninglessly applying both principles to cases with restriction of liberty rights. KCC is not consistent in determining whether the principle of presumption of innocence is violated or not. For KCC applies it to cases in which the suspect suffers from a disadvantage with no consideration of where the disadvantage stemmed from. In my opinion, presumption of innocence should be understood as precluding not all disadvantages but only premature criminal sanctions on the suspect or the accused as a a sign of admitting his guilty. Likewise pretrial detention has no relationship with the principle of presumption of innocence as it is not a criminal punishment.