변호인의 피의자신문참여권에 대한 비교법적 연구

In this paper, the contents of the present system related to the right for the counsel to participate in suspect interrogation are reviewed, the problems of it are pointed out, and the improvement measures of it are suggested through a comparative study on the foreign system. The main contents of this paper are summarized as follow:First, the §243 bis 2 that approves the right for the counsel to participate in suspect interrogation was founded in 2007 through the revision of the Criminal Procedure Law. This was done by endless insistence of the academic world and the bar association, the decision of the Supreme court and the Constitutional court, and through the discussion of the Presidential Committee on Judicial Reform. However because the restriction cause of the 'justifiable reason' that restricts the right of the attorney is unclear and the participation record is also low, improvement measures have been discussed after the revision of the Criminal Procedure Law. Second, Japan does not allow the right for the counsel to participate in suspect interrogation, also Germany and France legislation examples usually don't approve counsel's participation in a police investigation. In addition for the countries like the U.S.A., U.K., and Australia the right for the counsel to participate in suspect interrogation is being accepted only for arrested suspects and defendants. Wherefore when we see the outlooks of this, it is very hard to find legislation cases like Korea's, that largely allows the right for the counsel to participate in suspect interrogation without distinction of police and prosecution investigation. Nevertheless if we see this more practically, for the case of Germany in suspect interrogation, not only is participation of the counsel widely being accepted, but also there is no special restrict provision on the right for the counsel to participate like in Korea. Moreover for the case of the U.S. there is a special rule that after the subject has used the right to request a counsel, as long as the attorney does not attend the investigation, no investigation can be done, and there is no restriction on the counsel's right to participate. In this point of view, when we see only the outlooks it seems like that Korea is giving wide range of rights for the counsel to participate in the examination of a suspect, but actually this right of the counsel could be nominal by investigative agency. Third, the drawback of the existing system lies in the limitation of the right for the counsel to participate in suspect interrogation and the low participation rate. The 'justifiable reason' for restricting the rights of the counsel on the examination of a suspect could be actualized by precedents and theories to some extent, but there is a big chance of this being arbitrarily comprehended because it is a very unclear legislation. Furthermore low rank legislations including the prosecution office work regulation have a chance of going against the purpose of the regulation. Accordingly revising 'as long as there is no justifiable reason'to be more specific by enumerating the notable inconveniences, like 'as long as it does not notably make us concern about the danger on the purpose of investigation like the disturbance of interrogation, leakage of investigation secret,illegal assistance' is needed, also low rank legislations like the prosecution office work regulation should also be modified according to the purpose. Besides we should expand the court-appoint defense counsel system considering the low participation rate, also we should improve the participation performance of the counsel on the suspect interrogation by giving credit on admissibility of evidence not only for the protocol of examination of a suspect that judicial police officer has made, but for the one that the prosecutor has made, when the defendant, who was the suspect or the attorney has approved it.