[1] Whether the right of counsel to meet and communicate without permission through the unilateral disposition of the investigative agency (negative), and the limitation of the right of counsel to meet and communicate

[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 an interview and communication with a defense counsel may be prohibited solely on the ground that a criminal act suspected of having committed a criminal defendant or suspect under physical restraint is related to his/her defense counsel (negative)

[1] Articles 34, 89, and 209 of the Criminal Procedure Act, Article 12 (4) of the Constitution / [2] Articles 1 and 24 (2) of the Attorney-at-Law Act / [3] Article 34 of the Criminal Procedure Act, Article 12 (4) of the Constitution

Prosecutor Song Ho-sung

Suspect (portem)

Seoul Central District Court Order 2006No3 dated November 29, 2006

The reappeal is dismissed.

The grounds of reappeal are examined.

1. Article 89 of the Criminal Procedure Act provides that "a defendant detained may have a meeting with any other person within the scope of the Act," and Article 34 of the same Act provides that "a person who intends to be a defense counsel or a person who intends to be a defense counsel may have a meeting with a criminal suspect or a criminal suspect detained and receive documents or articles, in addition to cases where a criminal suspect is arrested or detained pursuant to Article 209." The main sentence of Article 12 (4) of the Constitution provides that "a person who is arrested or detained shall have the right to prompt assistance of a defense counsel shall have the right to receive assistance of a defense counsel." The main sentence of Article 12 (4) of the Constitution provides that "In order to realize the purpose of guaranteeing the right to receive assistance of a defense counsel as one of the fundamental human rights of a criminal suspect or a person who intends to be a defense counsel, and at the same time, it shall be deemed that the fundamental rights of a defense counsel or a person who intends to be a defense counsel have the legal right to freely meet and communicate with a criminal suspect.

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 is physically detained shall be exercised within the scope that does not infringe upon the original purpose of the physical restraint system. The exercise of the right to interview and communicate beyond such limit shall not be permitted because it does not constitute the exercise of the right to contact and communication

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 judgment, and held that the quasi-Appellants of this case need to have independent meetings of the suspect even if other co-appellants are appointed, 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 various circumstances such as total meeting hours, it cannot be concluded that the quasi-Appellants are seeking to interview and communicate with the suspect in this case, and that the quasi-Appellants cannot be deemed unlawful to give legal advice to the suspect in this case to exercise the right to refuse to interview from time to time, and that the quasi-Appellants’ exercise of the right to interview cannot be readily deemed to be for the quasi-Appellants themselves, and that the decision of the court below to the effect that the prosecutor’s refusal of meeting in this case is unlawful

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

Justices Shin Hyun-chul (Presiding Justice)