변호사-의뢰인 비닉특권의 도입 요구에 앞서― 미국의 제도와 경험의 시사점 ―

In September 2017 and again in January 2018, two separate but similar bills were introduced in the Korean National Assembly proposing the introduction of U.S.-style attorney-client privilege in Korea. The bills propose amending the Korean Lawyers Act to add the textbook elements of U.S.-style attorney-client privilege but fail to address the significant structural issues that would arise if such privilege is adopted in Korea. This paper focuses on the main differences in the Korean and U.S. legal systems to highlight three important issues to consider before adopting the bills. First, the paper questions whether given the Korean legal system, attorney-client privilege should be adopted as a U.S.-style general rule of evidence that applies in all contexts or whether it would be useful to consider partial adoption in certain areas. Second, the paper considers whether clients or attorneys should be the privilege holder when it is not clear from the bills. Lastly, the paper considers what types of structural precautions would be necessary to prevent abuses of the privilege, by examining the tobacco litigation experience in the U.S.