변호사-의뢰인 특권의 의뢰인 권리로서의 해석과 입법화 방향 : 변호인 조력권의 실효성 보장을 위한 제언

Abstract

According to Article 502(g)(1) of the U.S. Federal Rules of Evidence, “the privilege of a Attorney client means protecting the content of conversations between lawyers and clients according to the law.” However, the current law in Korea does not directly stipulate the concept of Attorney client privilege'. In Korea, discussions on attorney-client privilege are mainly conducted on whether the seizure is legal and whether the evidence is recognized when the investigative agency confiscates legal opinions prepared before, during the investigation, and the suspect and the defendant exchange opinions with the lawyer. As a result, the above data are not used as data for fact-finding due to the denial of the admissibility of evidence. However, if the seizure of these materials is not restricted, there is still a possibility that the investigative agency will confiscate legal opinions and use them as clues to the admission of criminal charges in the facts of the prosecution, which will inevitably burden the defendant, the suspect, and the lawyer. If so, many of the rights related to the defense rights of defendants and suspects stipulated in the Criminal Procedure Act will inevitably become nominal and could eventually lead to serious infringement of the right to receive assistance from lawyers recognized by the constitution. Attorney-client privilege should be viewed as a fundamental right that functions as a premise for the defendant and suspect to freely listen to legal experts' opinions on their situation and participate as a party in the proceedings while ensuring confidentiality. I think that the method for substantially guaranteeing the right to receive sufficient assistance from these lawyers should be supplemented by reviewing the deficiencies of the current law and revising the relevant laws. Considering that lawyer-client privilege is more reasonable to interpret it as a fundamental right included in the right of the client, the defendant, and the suspect to receive assistance from the attorney, rather than as a special right, the right to refuse disclosure to assist the client's attorney should be fully reflected in the legislative process.