변호인의 ‘충분한’ 조력을 받을 권리 - 미국 연방 수정헌법 제6조의 수용가능성 -

Korean Constitution says, “Any person who is arrested or detained shall have the right to prompt assistance of counsel” (Article 12, Section 4). Constitutional Court of Korea explicitly affirms as a basic right of the detainee to assistance of counsel and this right is derived from the ‘principle of due process’ under Article 10 and Article 12, Section 1, of the Constitution, the ‘right to fair trial’ under Article 12, Section 4, and Article 27 of the constitution, and the ‘ideal of fair procedure’ as one of the elements of the principle of the government of the rule of law. As such, it is the right that should be guaranteed sufficiently and effectively. The requirement should not be satisfied by the mere formal appointment of an attorney to the detainee or defendant. United States Supreme Court has established significant decisions like Powell v. Alabama (1932) that failure to make an effective assistance by defense counsel would constitute deprivation of the constitutional right to effective assistance of counsel by the Sixth Amendment. This kind of consideration should be introduced into our constitutional interpretation. Former studies have been focused on the issues that detainee or defendant could disclosure the documents retained by the government or investigative authorities during the investigation and could seek free consultations from the attorney appointed by the suspect or the detainee. Now the time is come to turn our attentions to the sufficient and effective assistance by competent counsel in the formal proceeding. However this claim may not be decided by simple criterion and the reviewing court also has extremely difficult position because of the complexity of standards to direct the problem based on the quality or adequacy of tactical judgement by attorney on the every step in the process. But the standards, established by several leading cases like Strickland and Cronic, would be helpful to solve this difficult task. I hope this comparative study make it possible to deeper development for effective assistance of counsel in Korean criminal trial stage.