절차규범으로서의 무죄추정원칙 - 유죄혐의와 무죄추정원칙 간의 갈등관계를 중심으로 -

This article examines the nature and function of the presumption of innocence as a procedural norm. The presumption of innocence is not a principle intended to assess, from a psychological or empirical perspective, whether the suspect or defendant has actually committed a crime. Therefore, it is a mistaken approach to assume that the degree of presumption of innocence diminishes as the probability of guilt increases throughout the investigative process. The presumption of innocence is a principle that requires the presumption of formal innocence, mandating that the suspect or defendant be presumed innocent under any circumstances until the legal proceedings have been fully completed. When the presumption of innocence is understood as a procedural norm, its unique and essential function is to ensure the transparency and finality of the legal process. Moreover, this function, which prohibits the denial of procedural rights, extends beyond the mere guarantee of due process and leads to a normative command that no disadvantage, which could be interpreted as the consequence of a guilty verdict, may be imposed on the suspect or defendant before the proceedings are concluded. The determination of whether a sanction constitutes such a disadvantage should not be based on a proportionality review, but rather on whether the imposition of the sanction amounts to the social and ethical disapproval that follows from a confirmed conviction. The presumption of innocence as a procedural norm must be understood as a principle that consistently maintains its normative function, regardless of the intensity of the suspicion of guilt. This is because the procedural rights of suspects or defendants must be applied uniformly, whether the suspicion of guilt is strong or weak. Separate from the examination of the presumption of innocence, the normative constraint that suspicion of guilt imposes within the criminal procedure is realized through the principle of proportionality. In the process of proportionality review, the suspicion of guilt and the restriction of fundamental rights are in a state of tension. The suspicion of guilt can be divided into stages such as initial suspicion, sufficient suspicion, and compelling suspicion, and for any restriction of the suspect's or defendant's fundamental rights through investigative measures to be justified, a corresponding level of suspicion is required.