변호인·의뢰인 비밀유지권과 압수에 관한 입법 개선 - 형사소송법 제112조 압수거부권 조항 등의 현행 해석론과 개정안의 한계를 중심으로 -

Abstract

While the client discloses confidential information to the attorney to receive assistance as an exception in a criminal procedure that implements the principle of nemo tenetur se ipsum accusare (no man is bound to accuse himself), the more the client trusts the attorney, the greater the risk of a disadvantage the client faces when confidential information is leaked. To guarantee the defendant's right to defense, it would be needed to institutionally protect the client facing such a dilemma by granting the privileged status to confidential information between the attorney and client. Attorney-client confidentiality, such as attorney-client privilege (ACP) in US laws and legal professional privilege (LPP) in British laws, is enacted into law in many countries in the above context with provisions about the objects subject to such confidentiality, reasons for exceptions, procedures to exercise such confidentiality, and procedural effect against any infringement. In Korea, since the Supreme Court en banc decision on May 17, 2012(Case Number: 2009DO6788) explicitly denied attorney-client confidentiality as a constitutional right, there have been legislative efforts to define attorney-client confidentiality as a legal right. Once a year since 2017, a partial amendment has been proposed for Article 26 (Duty to Maintain Confidentiality) of the Attorney-at-Law Act. Recently in 2023, a couple of partial amendments to Articles 112 and 149 of the Criminal Procedure Act were also proposed. While these proposed amendments may be considered desirable legislative efforts in terms of guaranteeing the right redundantly, a comparison of the proposed amendments shows discrepancies in the requirements and procedures to exercise the right. To prevent unnecessary redundant amendments, it is urgently needed to consolidate the proposed amendments or make the language consistent. Amid these legislative trends to incorporate attorney-client confidentiality into law, this article aims to review the literature and the current interpretation and delve into what is not covered in these proposed amendments to explore better directions for the Attorney-at-Law Act and the Criminal Procedure Act. To begin with, an amendment to Article 26 of the Attorney-at-Law Act alone cannot establish who has attorney-client confidentiality, how such confidentiality can be exercised, and whether the state's power can limit the effect of such confidentiality. Hence, it is crucial to amend the Criminal Procedure Act alone or together with the Attorney-at-Law. Meanwhile, although “necessary for important public interests” as a reason for an exception from the right to resist seizure under Article 112 of the Criminal Procedure Act determines whether the right to resist seizure can be exercised, and therefore, effectively functions as an independent requirement, it is worded as a very ambiguous concept, which makes it difficult to make a judgment about it. Annotations for the Criminal Procedure Act, which are supposed to provide a clue, also leave it to government agencies including the prosecution and the police, which are often in conflict with the subject of attorney-client confidentiality, to make a judgment. Not only that they also provide an interpretation which contradicts Article 149 of the Criminal Procedure Act, which shares the same legislative purpose. This leads to the neutralization of the right under Article 112, but is not covered in the recently proposed amendment to the Act. Despite the principle of equality of arms in the criminal procedure, there is always an imbalance in reality between the accused or defendant and the government agency. To allow the attorney to bridge this imbalance, guaranteeing strict attorney-client confidentiality for communication with the client must be recognized in law, and only free communication between the attorney and client based on such confidentiality would realize the right to a fair trial in effect. As a series of the recently proposed amendments will serve as the first step and cornerstone to this end, the amendments need to be reviewed and verified from a variety of perspectives, reflecting both consistencies with other legal systems, which consist of criminal justice, and practical needs before they are properly enacted into law.