재판청구권의 실질적 보장을 위한 소고 - 수용자의 경우를 중심으로 한국과 미국의 논의 비교 -

In the U.S., the constitutional right of access to the courts requires the state to assist inmates in the preparation and filing of meaningful legal papers. Despite the constitutional right to access to the courts does not appear in the U.S. Constitution, the U.S. Supreme Court has declared it to be the fundamental right since its Ex Parte Hull case in 1941. According to Bounds case that re-established the legal nature and scope of access to the courts, the fundamental constitutional right of access to the courts implies the state's obligation to assist the preparation and filing of meaningful legal papers by providing inmates with adequate law libraries or adequate assistance from persons trained in the law. The Constitution of Korea stipulates that all citizens shall have the right to a fair and speedy trial in Article 27, that is in nature of the basic procedural right that justifies the state obligation to provide the meaningful and effective way to access to the courts. Nevertheless, the right to trial under the Constitution of Korea does not extend its protection for the preparation and filing of lawsuit despite of its specification in the Constitution and its nature. As appeared in the Bounds case, inmates who are detained and physically isolated from civil society, but should enjoy the right to trial, would have difficulties in exercising their rights to trial unless the state assists inmates in the preparation and filing of lawsuit. Therefore, at least from the perspective of inmates, the right to trial of the Constitution of Korea should extend its protection to encompass the preparation of litigation, respecting the spirit and values of the Constitution.