The Criminal Procedure Act of Korea has not had an explicit provision for the right to the presence of counsel during interrogation until the Article 243-2 of the revised Act took effect on and after January 1, 2008. Whether being in custody or not, a suspect is entitled to have counsel present during interrogation. But while the right to counsel has been the constitutional right, there was discussions on the content and extent of the right. the Article 34 of the previous Act provided the right to counsel for only a suspect in custody and the Article 243 of the previous Act had prescribed only an investigation officer or policeman as those who could be present during interrogation. So the question that a suspect could have a counsel present during interrogation was raised in the practice and the academic circles of law. Many of them had denied the right to the presence of counsel during the interrogation. In November 2003, the Supreme Court of Korea had held that a suspect in custody had the right to the presence of counsel during interrogation. And in September 2004, the Constitutional Court of Korea had determined to confer the right on a suspect without custody. There were advances of the right to counsel through these decisions in Korea. After the 2007 criminal procedure reform, the Act has an explicit provision for the right. Therefore, a suspect is entitled to have a counsel present during the course of investigation and is allowed to get advice from the counsel. Also the counsel is allowed to be present with the client during interrogation. However, unlike the right of a suspect, the right of a counsel is not granted by the Constitution of Korea but by the Criminal Procedure Act of Korea.

[대상판결] 대법원 2007. 11. 30. 선고 2007모26 결정
  1. 사실관계
  2. 소송의 경과
  3. 대법원의 결정요지
 〔연 구〕
  Ⅰ. 들어가는 말
  Ⅱ. 형사소송법 제243조의 2의 해석
  Ⅲ. 대상결정의 검토
  [참고문헌]
  [Abstract]

• 전승수(서울 남부지방검찰청 검사) | Chun, Seung-Soo