헌법과 국선변호 - 국선변호 확대방안의 헌법적 정당성과 그 효율화 방안을 중심으로 -

Abstract

Art. 12 (4) of Korean Constitution states that "Any person who is arrested or detained shall have the right to prompt assistance of counsel. When a criminal defendant is unable to secure counsel by his own efforts, the State shall assign counsel for the defendant as prescribed by Act". In 2009, the Advisory Commission on Constitutional Revision for the Speaker of the National Assembly proposed among many other agenda that not only a criminal defendant but also a criminal suspect shall be entitled to enjoy the right of State-appointed counsel. The author supports this reform on the grounds that without the right to the assistance of State-appointed counsel to a criminal suspect, the constitutional guarantees such as the privilege against self-incrimination, procedural and substantive protection from due process of law, the right to fail trial become less effective. However, the author also criticizes the proposal by arguing that the scope of the right to State-appointed counsel tied up by the "arrest or detainment" prerequisite is not enough to protect citizens from the abuse or misuse of law enforcement activities and therefore should be extended to all criminal proceedings. In addition, the author proposes that in order to effectively institutionalize the extended State-appointed counsel system, a couple of reform agenda such as introduction of public defender system, the reform of court-assigned counsel system and legal aid system should be discussed in the broader sense of comprehensive judicial reforms the targets of which include legal education and training system, judicial career system, judicial and prosecutorial proceedings and so on.