(영문) 부산지방법원 2016.7.19.선고 2015가단243589 판결

1. The defendant shall pay to the plaintiff 1,00,000 won with 5% interest per annum from October 6, 2015 to July 19, 2016, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 90% is borne by the Plaintiff, and 10% is borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall transmit to the plaintiff KRW 20,000, 100 and a copy of the complaint of this case from October 6, 2015.

5% per annum and 15% per annum from the following day to the date of full payment.

H. D. Payment

Reasons

1. Basic facts

On October 6, 2015, the Plaintiff, as an attorney-at-law, applied for an interview with a counsel by telephone to the C prosecutor belonging to Busan District Prosecutors' Office on October 6, 2015 for an interview with the arrested B, and C prosecutor is under investigation to the Plaintiff, and the Plaintiff is under investigation, so the Plaintiff is deemed to be the prosecutor's office at around 7 p.m. on the same day. A correctional officer transferred B to the prosecutor's office at around 5 p.m. and waiting for a night investigation to proceed from around 7 p.m. in the prosecutor's office at around 7 p.m., and the Plaintiff was waiting at the prosecutor's office at around 7 p.m., but the Plaintiff refused the interview by the correctional officer on the ground that there is no dispute between the parties or that the application for an interview

The results of fact-finding conducted by Busan Local Bar Association and the purport of all pleadings are recognized.

2. Determination

A. The main text of Article 12(4) of the Constitution of the Republic of Korea provides that "any person arrested or detained shall have the right to prompt assistance of counsel when arrested or detained." The right to assistance of counsel shall be guaranteed as one of the fundamental human rights, which can be realized through free meeting and communication with counsel. Thus, the Criminal Procedure Act provides that "any person who intends to become a counsel or counsel may meet with the accused or the suspect under physical restraint and receive documents or articles in order to substantially guarantee this," and Article 243-2(1) provides that "the prosecutor or judicial police officer shall have a defense counsel meet with the accused or the suspect upon request of the suspect or his/her defense counsel, his/her legal representative, spouse, lineal relatives, brothers and sisters, or siblings, or shall have a defense counsel participate in the examination of the suspect unless there is any justifiable reason."

Since the right to meet and communicate with a counsel of a person under physical restraint is an essential right for guaranteeing the human rights of such person and preparing for defense, it is not of the nature that can be restricted to any name, unless there is a limitation pursuant to the law, but can not be restricted by the disposition of the investigative agency or the decision of the court, and there is no limitation in the procedure or time. Since there is no specific provision that restricts meeting and communication between the person under physical restraint and the counsel under the current law, it is necessary to guarantee and allow that the person under physical restraint meet and communicate with the counsel at any time even during the interrogation by the investigative agency, and the restriction or refusal of such restriction is unlawful as it is against the law.

B. In the instant case, the suspect B completed the investigation at the prosecutor’s office, and the correctional officer waitings for the suspect to arrest at night by taking over the suspect’s personal illness from the prosecutor at around 5 p.m. on the 5 p.m., the detention warrant is practically the same as the detention house in that the place is located in the prosecutor’s office and is in fact an area managed by the correctional officer. As such, it may be difficult to deem that the interview should be conducted within a daily period, in principle, pursuant to Articles 58(1) and 102 of the Enforcement Decree of the Administration and Treatment of Correctional Institution Inmates Act, as in the case where the suspect is in the detention house.

C. However, in light of the fact that the suspect B was scheduled to undergo an investigation again from 7 p.m. to the inspection room or investigation room from 7 p.m. at 7 p.m., and actually under investigation from 7 p.m. at the inspection room or investigation room from 7 p.m., there is no limitation in the procedure or time, and as seen earlier, the investigative agency’s right to interview and communicate with the suspect does not interfere with the investigation procedure and time, it is reasonable to view that the defense counsel can conduct an interview beyond a daily hour if necessary. There is no other special provision that restricts the counsel’s interview with the suspect who is being investigated at the inspection room after the daily and after 7 p.m., a correctional officer refused the Plaintiff’s interview on the ground that it is an interview outside the daily hours, and the prosecutor who was until the end of 7 p.m. to the time of the inspection room and investigated the suspect without the Plaintiff’s interview (the prosecutor was entitled to properly permit the Plaintiff’s interview with the suspect and the Plaintiff, regardless of the refusal of the correctional officer’s action.

D. As to this, the defendant asserts that, according to Article 9-2 (2) of the Rules on the Prosecution's Office Affairs, the prosecutor shall, upon receiving an application under Article 243-2 (1) of the Criminal Procedure Act, have the applicant submit a document concerning the appointment of a counsel before the presence of a defense counsel." However, at the time, the plaintiff asserts that there is no obligation to permit the meeting since he/she applied for an interview

However, these reasons are not specified when a correctional officer, etc. refuses to meet the plaintiff, and the above provision is not a provision at the time of a defense counsel participation, nor a provision at the time of a counsel interview. Article 34 of the Criminal Procedure Act permits a person who intends to be a defense counsel to meet with the suspect. Thus, the defendant'

E. Furthermore, considering all circumstances, such as the amount of consolation money, degree of damage suffered by the plaintiff, degree of a prosecutor's and correctional officer's illegal act, it is reasonable to determine consolation money to be paid to the plaintiff by the defendant as one million won.

Therefore, from October 6, 2015, which was the date of tort against the Plaintiff, the Defendant’s defense as to the existence and scope of the obligation by the Defendant from October 6, 2016, which was the date of this decision.

7. By the time of 19.19., 5% per annum under the Civil Act and 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

3. Conclusion

The plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit.