‘변호인의 조력을 받을 권리’에 관한 최신 쟁점

Study on The Latest Issue about ‘Right to Legal Counsel’

The main issue of this case is related to the right of interview and communication. Article 34 of the Criminal Procedure Act protects the right of both ‘the defense counsel’ and ‘the person who desires to be a defense counsel’ by stating “The defense counsel or a person who desires to be a defense counsel may have an interview with the criminal defendant or the criminal suspect who is placed under physical restraint, may deliver or receive any documents or things and may have any doctor examine and treat the criminal defendant or the criminal suspect.” But it is questionable whether the attorney who showed his/her desire to be defense counsel to declare the right of interview and communication is eligible to do so. The Supreme Court judged that it cannot be prohibited to have the right of interview and communication if there is a possibility for a person who desire to be a defense counsel to be the actual defend counsel. The next issue is discrimination between prisoners and unconvicted prisoners. A prisoner shall be subject to a number of fundamental rights as compared to general public, but such restrictions shall be made only when necessary for the purpose of detention. Recently, the Constitutional Court made a constitutional unconstitutional and unconstitutional decision on the grounds that if infringed the right to a fair trial for the restriction of the time and the number of times in accordance with the general consultation when meeting attorney at a criminal trial. The right to a fair trial is recognized as a fundamental right of prisoners in all countries of the world, and it is explicitly stipulated in the UN Covenant on Human Rights. However, the Constitutional Court considered that the right to fair trial was not infringed on civil justice in the civil trial, and the basic right of the prisoner was not recognized as the basic right of the prisoner. Therefore, the discrimination between the two is extremely unfair in that both the detainee and the prisoner art subject to the right to a fair trial. So the current legislation stipulating should be urgently amended.