법률구조청구권의 헌법적 의의와 가치 ― 헌법상 권리로서 법률구조청구권 입론 ―

The right to legal aid as fundamental right can be evaluated as a constitutional request for the realization of the right to trial(Article 27 of the Korean Constitution) and social welfare. Therefore, it is a constitutionally required task to review the constitutional grounds of the right to legal aid. Above all, constitutional significance and value of the right to legal aid can be found in the realization of the fundamental rights as the object of the state and the fulfillment of the obligation of the state to guarantee the fundamental rights (Article 10 of the Korean Constitution). In particular, the right to legal aid contributes to the realization of the right to trial as a procedural fundamental right. The facts that the right to legal aid contributes to the realization of the right to trial can be found in the following points. First, denying the right to legal aid as a whole is a violation of the essence of the right to trial, so that the right to legal aid is a precondition of the right to trial as a fundamental right. Second, it is the viewpoint of the right to access to the court. The right to access to the court is subsumed by the contents of the right to trial. The biggest problem in ensuring the right to access to the court is the cost of litigation and the help of the counsel. If the right to access to the court should be ensured, the parties should not be restricted in their use of the court due to the cost of litigation. Third, it is the viewpoint of the right to a fair trial. How to form a right to a fair trial is, in principle, part of the freedom of legislative formation, but with respect to the right to legal aid and defense of the proceedings, participants in the proceedings should be entitled to the right to the same effective trial as the other party. Fourth, it is an aspect of the principle of effective protection of rights. It is a consistent declaration of precedents of our and international courts that it is necessary to have a legal aid in the case of lack of economic ability in order to protect effective rights. In addition, the right to legal aid is also necessary to ensure the principle of equality of arms. If the principle of equality of arms should be observed, a legal aid for the poor is essential. If the principle of equality of arms is derived from the right to a fair trial, it is natural that it should be guaranteed not only in criminal cases but also in civil cases. Furthermore, the right to legal aid contributes to the realization of the principle of social states. In cases where legal aid is required due to poverty or ignorance, the constitutional obligations of states actively providing legal services may be derived. The universal legal welfare as a basis of citizen autonomy may become institutional premise of democratic constitutional state. The right to legal aid having those constitutional meaning and value can be found in a number of constitutions, including the EU Charter of Fundamental Rights. Article 27 (1) of the Constitution of the Republic of Korea does not provide a constitutional response to the right to be assisted by lawyers due to poverty etc, even if the right to receive counsel is obtained in the civil procedure. In a democratic constitutional state, procedural rights are demanded to be placed constitutionally in the sense that they include rights to procedure itself as well as rights in the proceedings, in the sense of meaning that individuals have in a democratic society, and in the sense of guaranteeing the essential content of fundamental rights. Therefore, when amending the Constitution, the paragraph below is recommended to be inserted in the section of the rights on judicial proceedings. “Persons who can not receive effective remedies due to economic, physical, temporal or local difficulties, have the right to legal aid. The specific content shall be determined by law.”