辯護士의 助力權을 制限한 行政節次의 違法性

Abstract

This paper is a case study on the ‘Supreme Court 2016DU33339 Decision sentenced on March 13, 2018’. In this case, the Supreme Court affirmed that the attorney's attendance for the subject to discipline at the disciplinary committee in the disadvantageous disposition process is an essential part of the exercise of defense rights, so if the administrative agency prevented attorney's attendance, the disciplinary action should be canceled in principle. However, this case is concluded that the disciplinary action would not be canceled by sentencing that there was a special situation that could not be seen as a substantial obstacle to the exercise of defense. This ruling is the first case to provide a specific legal theory on the legality of a disposition that limits the right of attorney to counsel appointed as an agent in administrative procedures. Thus, this case is considered to be important in the interpretation of the Administrative Procedure Act. In addition, this case deals with the scope of the exclusion of the Administrative Procedure Act, and the extent of guaranteeing the opportunity to comment and providing the reasons for disposition to justify the legal disposition, this case is also meaningful as a ruling that flexibly applies the precedent legal theory to a particular case where a existing fact and judgment exists. However, the section judged in consideration of whether or not it caused substantial obstacles to the exercise of defense against unjustly restricting the right of attorney's assistance in intrusive administrative procedures, there is a logic problem in that it is not classified the scope of the guarantee of constitutional rights and the scope of recognition of legal rights. This is because the right of attorney to counsel in intrusive administrative procedures should be regarded as the fundamental right inferred by Article 12 (4) of the Constitution. Considering whether or not it has caused substantial obstacles to the exercise of defense is a Supreme Court's legal theory regarding how to restrict the guaranteeing the opportunity to comment and the providing the reasons for disposition, therefore I think this ruling has a mistake that applied the above legal theory in a case where the constitutional fundamental rights are limited. In the future, it will be necessary to formulate more advanced Supreme Court's rulings on whether the right of attorney to counsel in administrative procedures has a status as a constitutional fundamental right, and what the scope of the right of attorney to counsel, etc.