무죄추정원칙의 적용요건 및 과잉금지원칙과의 관계 - 유죄임을 전제한, 유죄인정 효과로서의 불이익 요건을 중심으로 -

The purpose of the presumption of innocence is to prevent human rights violations of suspects and accused persons and to promote fair trials. The presumption of innocence functions as a rule regarding the burden of proof and the degree of proof (the rule of judgment) and prohibits the imposition of disadvantages that presuppose guilt or have the effect of a guilty plea (the rule of treatment). The disadvantages prohibited by the presumption of innocence are those premised on plea of guilty and assumption of guilt. Disadvantageous treatment in criminal proceedings does not violate the presumption of innocence unless it is imposed to punish or retaliate against a person who is guilty. Detention is not prohibited by the presumption of innocence because it is not imposed on the basis of guilt, but is a temporary disadvantage imposed on a person because there are substantial reasons to suspect that he or she has committed a crime and there is a concern about the absence of fixed dwelling, fear of destruction of evidence, or fear of flight. The constitutional basis for the principle of investigation and trial without detention is not the presumption of innocence, but the essence of the right to liberty, Article 37(2) of the Constitution, the right of the suspect or accused to an adequate defense, and the right to a fair trial. There are decisions in which almost identical arguments have been repeated in judgments on the principle of proportionality and the presumption of innocence. The distinction between the two is blurred because the Constitutional Court presented ‘disadvantage as an effect of admission of guilt’ as a requirement for the application of the principle of presumption of innocence, but stated that if the disadvantage is limited to the minimum necessary, it can be exceptionally permitted under the principle of proportionality. The presumption of innocence is not an issue as long as the disadvantage is not imposed as an incentive to plead guilty. If a disadvantage is imposed premised on plea of guilty and assumption of guilt, it is unconstitutional in itself as a violation of the presumption of innocence, and cannot be justified through interest balancing. The presumption of innocence can function as a separate constitutional principle, distinct from the principle of proportionality.