변호사와 의뢰인 간 의사교환에 대한 비밀유지권과 압수수색의 제한

In the past, the search and seizure of communication data between lawyers and clients were not a major problem. This is because the investigative agency refrained from confiscating and searching the attorney’s office on its own, and the protection of confidentiality between lawyers and clients is a key element of guaranteeing the right to defend, and it was difficult to imagine an investigative agency confiscating and searching the attorney’s office. However, in recent years, the search and of seizure communication exchange data between lawyers and clients in the name of the client’s investigation is gradually increasing, and this is even used as evidence in investigations and trials. As a result, criticism has been raised that the confidentiality between the attorney and the client is not sufficiently protected, which leads to significant restrictions on the guarantee of the suspect and the defendant’s right to defend. However, Korea does not explicitly stipulate the right to confidentiality between lawyers and clients and the so-called “attorney-client privilege.” In this regard, the Supreme Court judged that the attorney-client privilege could not be derived on the basis of the lack of provisions under the current law, and on this basis, it was not reasonable to deny the evidence admissibility of the legal opinion prepared by the attorney. In this regard, the Supreme Court judged that the attorney-client privilege could not be derived on the basis of the lack of provisions under the current law, and on this basis, it was not reasonable to deny the evidence ability of the legal opinion prepared by the attorney. Instead, considering it as a matter of hearsay evidence, the case was resolved by denying the evidence ability of the legal opinion. However, a lower court recently ruled that it was illegal for prosecutors to seize documents, mails and messages exchanged with lawyers, as confidentiality is granted for communication between lawyers and clients based on their constitutional right to assistance of counsel. This paper examined whether the right to confidentiality of communication between lawyers and clients can be recognized through interpretation under current laws such as the Criminal Procedure Act. According to the theory of constitutionally-oriented criminal procedure, it can be interpreted that the right to confidentiality of communication between lawyers and clients can be recognized from the right to assistance of counsel under the constitution, even if there is no explicit provision in the Criminal Procedure Act. However, it is desirable to regulate the right to confidentiality of communication between lawyers and clients through legislation, just as the Constitutional Court derived the lawyer’s right to participate in the interrogation of suspects from the right to assistance of counsel.