The defendant consulted an attorney-at-law regarding legal issues which might constitute crimes before commencement of an investigation. The defendant received legal opinion from the counsel by e-mail, which was later seized and presented as evidence of guilt by investigative authority.The court of original instance rejected to accept written legal opinion from the counsel as evidence on the ground of Attorney-Client Privilege. The Supreme Court, however, deemed Attorney-Client Privilege is not rooted in our legal system.I concur with the opinion of the Supreme Court in that we have yet to find traditional or provisional basis for Attorney-Client Privilege. It is premature to acknowledge the concept of Attorney-Client Privilege without in-depth probe. Instead, the majority opinion of the Supreme Court looked to Articles 314 and 149 of the Criminal Procedure Act. Article 314 provides one of the exceptions to hearsay rule, which allows the written statement to be admitted as evidence of guilt without cross-examination against the person who wrote the statement, in case that the person is not available due to illness, unknown whereabouts, etc. as well as that the statement is proved to have been written under especially reliable circumstances. Article 149 confers the right to refuse to testify on the legal counsel regarding professional secrets he obtained in the course of business. The majority opinion of the Supreme Court ruled that Article 314 shall not apply in case that the legal counsel exercises his right to refuse to testify under Article 149. The majority opinion based its rationale on the fact that Article 314 had been revised with a tendency to reinforce oral hearing and direct examination by narrowing the scope of the exceptions to hearsay rule, as well as on the purpose Article 149 seeks to achieve. On the contrary, the dissenting opinion of the Supreme Court deemed that Article 314 shall apply in case of exercise of right for refusal of witness under Article 149. The dissenting opinion pointed out that Article 314 serves to discover the truth by allowing hearsay evidence under exceptional circumstances. According to the dissenting opinion, there is no difference between situation where the witness is unable to appear because of illness, etc. and situation where the witness exercises his right to refuse to testify when it comes to applying Article 314.I concur with the majority opinion of the Supreme Court. The witness who refuses to testify may or may not have lawful grounds to refuse. If he has sufficient lawful grounds, we should pay attention to the purpose of the Article which confers the right to refuse to testify. In this context, it stands to reason to declare that Article 314 shall not apply in case that the legal counsel exercises his right to refuse to testify under Article 149. By denying the admissibility of legal opinion as evidence of guilt, written by the legal counsel who lawfully exercises the right to refuse to testify, we can further the right to refuse to testify as well as the principle of oral hearing and direct examination.

[대상판례 1] 대법원 2012. 5. 17. 선고 2009도6788 전원합의체판결 [공2012하,1155]
  Ⅰ. 사안의 개요
  Ⅱ. 소송의 진행 경과
  Ⅲ. 대상판결의 요지
 [검 토]
  1. 문제의 소재
  2. 관련 규정
  3. 변호인-의뢰인 특권을 인정할 수 있는지 여부
  4. 이 사건 법률의견서가 전문증거에 해당하는지 여부
  5. 증언거부권의 행사와 형사소송법 제314조의 적용 여부
  6. 맺는 말
 [참고문헌]
 [Abstract]

• 김우진(특허법원 부장판사) | Woojin Kim