Legal basis
- Korean Constitution, Article 27(4): "A criminal defendant shall be presumed innocent until a judgment of guilt has become final." The Constitutional Court and scholars extend it to suspects.
- Criminal Procedure Act, Article 275-2 restates the rule.
- International: Declaration of the Rights of Man (1789) Art. 9, the Universal Declaration of Human Rights Art. 11, ICCPR Art. 14(2). In the US it is a component of due process.
Content
- Burden of proof: the prosecution must prove the offense; the defendant need not prove innocence.
- Standard of proof: Article 307(2) requires proof beyond reasonable doubt.
- In dubio pro reo: doubt is resolved in favor of the accused.
- Procedure: investigation and trial without detention are the rule; detention is the exception. The right to silence, limits on publicizing suspicions, and limits on forcing restraints or prison clothing all relate to it, working alongside evidence rules such as the hearsay rule.
Korean Constitutional Court examples
- Suspending a lawyer's practice merely upon indictment violated the presumption (90Hun-Ga48, 1990).
- Barring unconvicted detainees from wearing civilian clothes at trial was unconstitutional (97Hun-Ma137, 1999).
Limits and issues
The presumption binds the state's exercise of penal power, not private opinion or the press, yet publicizing suspicions and "trial by media" are criticized as undermining it.
References
- 대한민국헌법 제27조 제4항; 형사소송법 제275조의2, 제307조.
- 헌법재판소 1990. 11. 19. 선고 90헌가48 결정.
- 헌법재판소 1999. 5. 27. 선고 97헌마137 결정.
- United Nations (1948). Universal Declaration of Human Rights, Art. 11; (1966). International Covenant on Civil and Political Rights, Art. 14(2).
- 이재상·조균석 (2022). 『형사소송법』 (제14판). 박영사.