Main Issues

The effect of a defense counsel's meeting with respect to the suspect under detention by the head of the National Security Planning Department for a violation of the State Security Act.

Summary of Decision

Article 12 (4) of the Constitution provides that "any person who is arrested or detained shall have the right to prompt assistance of counsel." Article 34 of the Criminal Procedure Act provides that "The counsel or any person who intends to become a defense counsel may meet with the accused or the suspect detained by the physical restraint, make documents or articles, and have a doctor provide medical treatment." In addition to the restrictions under Article 18 of the Criminal Administration Act and Articles 54 through 72 of the Enforcement Decree of the same Act on the grounds of criminal administration, there is no ground for prohibiting the interview between the suspect and the defense counsel. Thus, the State Security Planning Department's disposition of refusing the interview of the defense counsel against the suspect detained by the suspicion of violating the National Security Act is unlawful.

[Reference Provisions]

Article 12(4) of the Criminal Act; Articles 34 and 417 of the Criminal Procedure Act

Quasi-Appellants

Quasi-Appellants

upper protection room:

Minister of National Security Planning

Text

On July 11, 1989, the head of the National Security Planning Department shall revoke the quasi-Appellant’s appeal against Non-Appellant 1 and his defense counsel’s rejection of the Quasi-Appellant’s appeal against Non-Appellant 2.

Reasons

According to the records of this case, Non-Appellant 1 was detained in the National Security Planning Board on June 27, 1989; Non-Appellant 2 was detained in the charge of violating the National Security Act on July 6 of the same year; however, the Quasi-Appellant 2 was appointed as the counsel of Non-Party 1 and Non-Party 2 and applied for an interview with Non-Party 1 and Non-Party 2 on July 11, 1989 to meet them, but he was subject to the disposition of refusing the above counsel meeting from the head of the National Security Planning Board on the same day. Thus, Article 12(4) of the Constitution of the Republic of Korea provides that "any person who is arrested or detained shall have the right to prompt assistance of counsel." Article 34 of the Criminal Procedure Act provides that "a person who intends to be a counsel may meet with the defendant or the suspect who is physically detained, may receive the documents or things, and may have a doctor receive them", and there is no reason to prohibit any interview other than those prescribed in Articles 18 through 74 of the Criminal Act.