[2] Relationship between the duty of truth and the attorney's right to refuse to make statements by the suspect or the defendant

[3] Whether a crime suspected of being committed by a defendant or a suspect detained may be prohibited from meeting and communication with his/her defense counsel solely on the ground that his/her defense counsel is related to the crime (negative)

1. The main text of Article 12(4) of the Constitution provides that "any person arrested or detained shall have the right to prompt assistance of counsel" that guarantees the right to counsel as one of the fundamental human rights. Since this can be realized through free meetings and communication with counsel, the Criminal Procedure Act provides in Article 34 that "a person who intends to be a counsel or counsel may meet the detained defendant or suspect and deliver or receive documents or articles to him/her," and Article 89 provides that "the detained defendant may have interview with another person within the scope of the Act, and Article 209 provides that "the provisions that directly restrict the right to interview and communicate with counsel to the accused or suspect who is physically detained shall apply mutatis mutandis to the arrested or detained defendant pursuant to Article 209, and the provisions that directly restrict the right to counsel and communication with counsel to the accused or suspect who is physically detained shall not apply mutatis mutandis.

However, arrest or detention under the Criminal Procedure Act takes place in order to prevent escape or destruction of evidence by a suspect or a criminal defendant who has a reasonable ground to suspect that he/she committed a crime and to guarantee his/her appearance (Articles 70, 200-2, and 201). Thus, the right to interview and communicate by a defense counsel for the criminal defendant or the criminal suspect who has been physically detained shall be exercised within the scope that does not infringe the original purpose of the physical restraint system. The exercise of the right to interview and communicate beyond such limit shall not be permitted as it does not fall under the exercise of the right to contact

However, since the right to meet and communicate with a physically detained person is in a relationship between the right to receive assistance from a counsel and the right to receive assistance from a counsel, which is guaranteed as one of the fundamental rights under the Constitution, if it is recognized that the exercise of the right to meet and communicate exceeds the above limit, it shall be careful so that the essential substance of the right to receive assistance from a counsel is not infringed, as a fundamental right under the Constitution of the physically detained person.

On the other hand, although the attorney-at-law, who is a lawyer, has the duty of truth as prescribed by the Attorney-at-law Act, the attorney-at-law's legal advice to the physically detained person is the right and duty, so it cannot be said that it violates the duty of truth as the attorney-at-law's duty of truth by informing the defendant or the suspect that he has the right to refuse to make a false statement, rather than having the defendant or the suspect actively make

Furthermore, under our legal system, which does not have a system, such as the exclusion of a counsel who extensively regulates defense activities of the counsel on the grounds that a criminal act suspected of being committed by a physically detained suspect or a criminal defendant is related to the relevant criminal act, it cannot be justified to prohibit the physically detained person from meeting and communication with the counsel solely on the ground that the physically detained person, who is the other party to the meeting and communication of the counsel, seeks the counsel to participate in the criminal act as an accomplice.

Such a legal principle is not only one defense counsel, but also several persons, and it is not possible to change the exercise of the right to meet and communicate by a defense counsel. Whether the exercise of the right to contact and communicate by a defense counsel exceeds the limitation should be determined individually based on the relevant defense counsel.

2. In light of such legal principles and records, the court below acknowledged the facts as stated in its holding, even if other joint counsel is appointed, the Quasi-Appellants need to have independent meetings of the suspect in this case, and even if there were some difficulties in the investigation of the investigation agency by exercising the right to interview from time to time, in light of all circumstances such as the total meeting time, it cannot be concluded that the Quasi-Appellants attempted to interfere with the investigation by visiting the exercise of the right to interview, and it cannot be deemed unlawful for Quasi-Appellants to give legal advice to the suspect in this case, and it cannot be concluded that the exercise of the right to interview of Quasi-Appellants is for the quasi-Appellants themselves. Accordingly, the court below's decision on the rejection of the interview in this case is just and acceptable in its conclusion, and there is no error of law such as misapprehension

3. Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)