변호사의 진실의무 위반과 증거위조죄의 해석 -대법원 2021. 1. 28. 선고 2020도2642 전원합의체 판결을 중심으로-

Abstract

The subject case is an issue in which the defendant, who is a lawyer, is asked to come up with a plan to receive a reduction in sentence from the client, and makes favorable sentencing evidence and submits it to the court. This has great implications for the violation of the duty of truth and the criminal responsibility of the lawyer in relation to the duty of the public interest among the duties of the lawyer. The lawyer's public interest status is a passive status obtained in the process of discovering the truth and securing appropriate procedures as the defendant's guardian, and the duty of truth has a passive meaning. However, it does not allow a crime beyond the scope of the right to defend established by the lawyer's passive duty of truth. Specifically, in the target judgment, the main issue was the interpretation of the meaning of “evidence” and “forgery” of the crime of forgery of evidence. Discussions on evidence data have previously been limited to false statements, but the target judgment that specifies that discussions on other evidence materials are limited to forgery of evidence methods is meaningful. However, the reason for excluding evidence data from evidence of forgery of evidence is limited because it is judged without any argument or interpretation. Thes ubject case has a limited interpretation of the conventional concept of forgery of evidence that does not ask for the existence of the authority to write or the authenticity of the content without a separate legal analysis. After the subject case a bill was proposed to punish the case of generating evidence for the purpose of proving false claims in the constituent requirements of the crime of forgery of evidence. Before introducing a new legislation that adds constituent requirements or establishes punishment regulations, it is necessary to clarify the evidence of evidence forgery and the concept of forgery through a clear interpretation of criminal law.