Pursuant to Paragraph (4) Article 27 of the Constitution of the Republic of Korea, the defendant shall be presumed innocent until a verdict of guilty has been reached. The constitution stipulates the innocence of the defendant rather than the innocence of suspect. However, if the presumption of innocence can be applied to the defendant, most likely to be pronounced a judgement of guilt after prosecution, it will be more strongly acceptable to the suspect who has not yet been prosecuted. The right to be innocent until proved guilty must be guaranteed, which should avoid letting the public know the fact of suspicion without any sound evidence and make a suspect be thought as a criminal offender. In this light, Article 126 of the Criminal Act classifies the behavior of 'publication of facts of suspected crime' by investigative authorities before prosecutor's indictment as a crime.
It is hard to find the provision on the publication of facts of suspected crime in other foreign legislations, and it is meaningfully stated only in Korean legislation. However, this provision is believed to be nearly nullified so far, because there has been no cases being punished for the crime of the publication of facts of suspected crime. Recently all eyes have been on the provision. For example, Ministry of Justice has strictly guided the Prosecution on the publication of the facts of suspected crime. The Special Committee on Past Wrongdoings by the Prosecution, set up under the Ministry of Justice, has reported 'the results of investigation and review on the publication of facts of suspected crime' and issued a recommendation to protect the suspect's human rights.
Despite its recent surface, this is not the first time to be raised as a problem. After a death of former President Roh Moo-Hyun, the issue created a huge sensation and it was recognized that the reform of the Prosecution was needed in order to address the publication of facts of suspected crime. The publication of facts of suspected crime is also limitedly allowed for the people’s right-to-know or for a large profit. However, investigative authorities have made public on the facts of suspected crime within permissible range, thus, it is doubtful whether it is fair to say that there is no case being punished for the crime. It is high time to have an in-depth discussion with reflecting the growing concerns on the publication of facts of suspected crime.
This provision is remarkably meaningful in terms of protecting defendant’s human rights. On the other hand, it also conflicts with basic human rights such as the people’s right-to-know and freedom of speech, preserved by Constitution. This is not the issue of being biased on one side. Therefore, this research tries to look at the issue from various perspectives and make a suggestion to reasonably apply the provision on the publication of facts of suspected crime.