피의자신문에 참여한 변호인의 진술거부권행사 권고와 변호인윤리

Abstract

Currently, a prosecutor in Korea officially submitted to the Korean Bar Association an application for commencement of disciplinary action against seven lawyers. One of the grounds for this application was whether the lawyers forced or just advised their clients to plead the right to remain silent for their best interest during interrogations, and whether such conduct violated the provisions of professional ethics that prohibits lawyers from damaging their dignity as attorneys and duty of candor to the tribunal. Around the same time, the Korea National Policy Agency announced that it would not accept the recommendations by National Human Rights Commission of Korea to take measures not to interfere with the exercise of the right to assembly during the police interrogation. These two affairs reveal the conflicts existent between investigation agencies and the lawyers participating in suspect interrogations and the need for resolving the conflicts through reasonable interpretation of the current rule on this issue and its reform, when necessary. Accordingly, this article reviews the right for the counsel to participate in suspect interrogations and its legal limitations, which was founded by the 2007 criminal procedure reform. This paper concludes that the right for the counsel to participate in suspect interrogations should be qualified as a fundamental right guaranteed by the Korean constitution, and its limitations should be justified only by the Act of Congress, not by the current administrative ordinance. Any restriction on this right for reasons of ‘interrogation disturbance’ should be also justified using objective and reasonable criteria. In particular, lawyers' advice on the right to remain silent during interrogations should not be regarded as a ‘justifiable’ criteria for restricting the counsel's right of participation in suspect interrogations or as a violation of professional ethics provisions, but rather should be prescribed as their duty for their client's best interest and for criminal justice in professional ethics.