피고인·피의자의 접견교통권에 대한 올바른 해석과 입법적 제언

Abstract

The rights to receive an attorney’s advice (Article 12(4) of the Legislative Act) that can be deemed as a practical means of realizing legal procedures must be practical and provide sufficient assistance. There are disputes on whether the details of the rights of receiving an attorney’s advice include legal advice that contain preventative measures, which has been denied by recent court holdings. However, such details generally include the rights of receiving advice from domestic attorneys, receptive traffic rights of the attorney, the attorney’s rights to participate in interrogations of the defendant, and the attorney’s rights to viewing and reproducedinvestigative records. Among which, there is no doubt that the receptive traffic rights of the attorney with the defendant are included within the most key points of the rights to receive the attorney’s advice as guaranteed by the Constitution. However, the Constitutional Courthas clarified that the receptive traffic rights with the attorney may be legally restricted if necessary for national security, maintenance of order or public welfare. Meanwhile, it was also held that the attorney’s receptive traffic rights belonging to the unique rights of the attorney could previously not be deemed as constitutional rights, and could not be considered as a right guaranteed by the Constitution simply as a right that is guaranteed pursuant to Article 34 of the Criminal Prosecution Act, or as a right that varies from the receptive traffic rights with the attorney held by the defendant. However, the Constitutional Courtrecently issued that the receptive traffic rights of the party intended to be the attorney must be constitutionally guaranteed as a fundamental right in order to substantially secure the right to receive the advice of the party intended to be the attorney for the defendant. Furthermore, with respect to the receptive traffic rights with a party that is not an attorney, the Constitutional Courtalso took the position that it prevents destruction caused by complete isolation from social relationships and as a fundamental right to prepare for defense, it belongs to the ‘constitutional fundamental rights’ in its characteristics. If so, since the restrictions of receptive traffic rights with a party that is not an attorney is currently achieved based on the independent decision of the investigating organization, if it is considered as a fundamental constitutional right and upon restriction thereof, it would be reasonable to request a clear legal basis and the court’s decision on the defendantalso.