변호사의 증언 및 압수 거부권과 변호사-의뢰인 특권

Abstract

Regarding whether the seizure and search of evidence prepared or kept by lawyers is lawful, the prosecution takes the position that it legitimately executed a warrant issued by a judge according to the needs of the investigation. In contrast, lawyers generally view that seizure and search conducted against lawyers constitute an act of unfairly violating the defense attorny's right to confidentiality and the constitutional right to counsel. Several bills have been proposed to solve the above problems, and many discussions are being made in the academic world. However, these discussions generally adopt a method of analyzing individual issues based on the statements made by the client to the attorny and the contents of the attorny-client privilege and work product immunity regarding the use of the evidence prepared or collected by the attorny. Such discussions are mostly staying at a vague and abstract level. Accordingly, in this paper, the discussion on whether the seizure and search of evidence prepared or kept by lawyers is legitimate should break away from the superficiality and move forward to a more particular and practical theory. For this purpose, issues are more specifically categorized and analyzed. Under the current Korean statues, the confidentiality of conversations between lawyers and clients can be protected by sections 149 and 112 of the Criminal Procedure Act and Article 12, Paragraph 4 of the Constitution. Especially, suspect’s and defendant’s right to refuse to search and seizure of evidences holding confidential conversations between lawyers and clients can be guaranteed by the constitutional right to counsel. As a result, it is concluded that the attorny-client privilege is sufficient to refer to while interpreting Korean statutes and does not need to be adopted as a whole. In addition, new and systematic interpretation theories on sections 149 and 112 of the Criminal Procedure Act have been developed and suggested by the author. The lawyer's right to refuse seizure should be applied only within the range where the lawyer's right to refuse to testify can be recognized. The reason for this is that the attorny's right to refuse seizure and testimony are all related to the confidentiality entrusted to the attorny in pursuance of legal assistance, and the reason for recognizing these rights is to prevent the use of confidential conversations between the attorny and the client as evidence. It is the same in that it is intended to ensure that the clients can receive sufficient assistance from the attorny, and in the United States, the basis for prohibiting the seizure of evidence prepared and kept by lawyers is regarded as attorny-client privilege.