미확정 범죄사실에 관한 공소장 등을 증거로 제출하는 검사의 소송행위에 대한 적절성 검토

The principle of “The Presumption of Innocence”, derived from the rule of law and due process, which originated in the Magna Carta, operates as a fundamental principle of the rule of law even when not explicitly stated in a constitution or law. It also functions as a principle naturally belonging to the rule of law in Roman law and ecclesiastical law, which are based on considerations for the innocent. Therefore, as long as a particular country upholds the rule of law, “The Presumption of Innocence” naturally applies and this principle is also guaranteed in international legal regime, including the Universal Declaration of Human Rights, concerning criminal suspects. In 1980, Republic of Korea introduced the principle of “The Presumption of Innocence” into its legal framework through constitutional amendments and revisions to the Criminal Procedure Act, explicitly enshrining it in our legal texts. Furthermore, it defined the act of making public of facts of a suspected crime as a criminal offense in the Criminal Act. Additionally, both the Constitutional Court and the Supreme Court have ruled that disclosing investigative results by law enforcement agencies is improper, emphasizing the strict adherence to “The Presumption of Innocence” in the criminal proceedings of the respective cases. This not only underscores the need for its rigorous compliance but also affirms that through this principle, other fundamental rights of the accused should be minimized. In light of this, the submission of materials, specifically indictments or verdicts that have not yet been finalized, for cases that are not directly relevant to the specific case in question, to the court, would, in some way (usually unfavorably), impact the accused. Furthermore, this would unfairly compel the accused to bear unjust responsibility for not finalized (even if it has been finalized, unrelated to the case in question) facts, directly contradicting the principle of “The Presumption of Innocence”. Therefore, any act by a prosecutor that involves submitting any materials related to not finalized cases in the trial of a different case should be prohibited as a violation of the principle of “The Presumption of Innocence”, particularly the prohibition of unfair treatment.