[1] The legal nature of the right to interview and communicate with the defendant under detention or the suspect, and whether the right to interview and communicate can be restricted by the disposition of the investigative agency (negative)

[2] Whether a judicial police officer's demand for a medical officer's participation in the exercise of the right of medical examination of the suspect detained in the detention room of the police station constitutes an unlawful disposition infringing the right of medical examination of the defense counsel (negative)

[1] The right to meet and communicate with a defendant under detention or a suspect is distinct in nature from the right to meet and communicate with a defendant or his/her defense counsel, and cannot be deemed as the right guaranteed by the Constitution. It is guaranteed only by Article 34 of the Criminal Procedure Act. However, since the right is indispensable for guaranteeing the human rights of the defendant or the suspect under detention and preparing for defense, it cannot be restricted by the disposition of the investigative agency, etc., but it is possible to limit it only by the law.

[2] Article 176 of the Criminal Administration Act applies to a suspect who is equivalent to a provisional detention facility (Article 68 of the Criminal Administration Act) and the Enforcement Decree thereof. Article 176 of the Enforcement Decree of the Criminal Administration Act provides that the defendant or a suspect under a medical examination by a doctor under Articles 34, 89, and 209 of the Criminal Procedure Act shall participate in a prison officer or a medical officer and enter the proceedings in his/her identification record." This is reasonable as it is to prevent or cope with an emergency situation that may occur in the course of a medical examination from the perspective of a confinement institution that shall protect and manage the defendant or suspect, or to prevent or cope with an emergency situation of the defendant or suspect's body. Thus, the provision of Article 176 of the Criminal Administration Act shall be deemed to fall under the legal limitation on the exercise of the right of defense counsel. Accordingly, a judicial police officer's request for a recommendation by a defense counsel to have a suspect detained in a detention room is an unlawful disposition based on Article 176 of the Enforcement Decree of the Criminal Administration Act.

[1] Article 12 (4) of the Constitution, Article 34 of the Criminal Procedure Act / [2] Article 34 of the Criminal Procedure Act, Article 68 of the Criminal Administration Act, Article 176 of the Enforcement Decree of the Criminal Administration Act

[1] Supreme Court Order 89Mo37 dated Feb. 13, 1990 (Gong1990, 1009) Constitutional Court Order 89HunMa181 dated Jul. 8, 1991 (Hun-Ma3, 356)

A judicial police officer of the National Intelligence Service;

Attorney Senior Gyeong-soo

Seoul District Court Order 2000No1 dated June 29, 2000

The order of the court below is reversed. The quasi-appeal of this case is dismissed.

The grounds of reappeal are examined.

1. According to the reasoning of the order of the court below, the court below acknowledged that the non-party to the case was arrested by a judicial police officer of the National Intelligence Service on May 20, 200 on charges of violating the National Security Act, and was detained and detained in the Seocho Police Station detention room on the 23th of the same month. The applicant applied for non-party medical treatment on the 25th of the same month as a defense counsel of the non-party to the case, and filed an application for non-party medical treatment with the judicial police officer of the National Intelligence Service. Accordingly, the National Intelligence Service need to secure objectivity and appropriateness of medical treatment, and it is necessary to prevent illegal acts without knowledge, which allow medical treatment only under the participation of the doctor recommended by the National Intelligence Service. The applicant refused medical treatment under such restriction, and the above measures taken by the National Intelligence Service judicial police officer are limited to the applicant's right to receive medical treatment in excess of the legal limits without any legal basis, thereby infringing the right of defense counsel, and thus, rejected the quasi-appeal disposition and dismissed the quasi-appeal.

2. The right to meet and communicate with a defendant under detention or a suspect is distinct in nature from the right to meet and communicate with a defendant or a suspect himself/herself, and is guaranteed only by Article 34 of the Criminal Procedure Act (see, e.g., Constitutional Court Order 89HunMa181, Jul. 8, 1991). However, since the defendant or a suspect under detention is an essential right for guaranteeing the human rights of the defendant or the suspect under detention and preparing for defense, it shall not be restricted by the disposition of an investigative agency, etc., but it may be limited only by the law (see Supreme Court Order 89Mo37, Feb. 13, 1990).

In addition, the detention warrant of the police station is equivalent to a provisional detention facility (Article 68 of the Criminal Administration Act), and the Criminal Administration Act and its Enforcement Decree shall apply to the suspect detained in that place, and Article 176 of the Enforcement Decree of the Criminal Administration Act shall apply to the case where the defendant or the suspect undergoes a medical examination by a doctor pursuant to the provisions of Articles 34, 89, and 209 of the Criminal Procedure Act, and the correctional officer and the medical officer shall participate in the medical examination and the progress thereof shall be entered in the identification book." This is reasonable as it is for preventing or responding to the emergency situation that may occur in the course of a medical examination from the perspective of the confinement institution that shall protect and manage the defendant or the suspect's personal illness, or to prevent or cope with the emergency situation of the defendant or the suspect's body. Thus, the provisions of Article 176 of the Criminal Administration Act shall be

Thus, the National Intelligence Service's request for the attorney's participation in the proceedings recommended by the National Intelligence Service is based on the provisions of Article 176 of the Enforcement Decree of the Criminal Administration Act, and it is lawful, and it cannot be said that it infringes on the right of defense counsel to receive medical treatment.

In other opinions, the order of the court below that concluded that the above measures of the National Intelligence Service’s judicial police officer against the detained suspect are limited without any legal basis or exceeded the statutory limits, is erroneous in the misunderstanding of legal principles as to such measures, which affected the conclusion of the judgment.

3. Therefore, the order of the court below is reversed, and since this case is sufficient to be tried by this court based on the records and evidence, it is decided directly. The gist of the grounds for the quasi-appeal of this case is that the National Intelligence Service judicial officer's demand for the participation of the National Intelligence Service's attorney to the attorney's attorney's attorney's attorney's attorney's attorney's attorney's attorney's attorney's attorney's attorney's attorney's attorney's attorney's attorney's attorney's right is illegal.

Justices Yoon Jae-sik (Presiding Justice)