변호사 비밀유지권과 실체진실 규명을 위한 수사권과의 조화 방안

This paper explores the conflict and harmonization between Attorney-Client Privilege (ACP) and state investigative powers (such as search and seizure), within the inherent tension between discovering substantive truth, a core goal of modern criminal justice, and the constitutional fundamental right to counsel. The constitutional right to counsel presupposes a relationship of deep trust allowing clients to frankly provide all information to their lawyers, and ACP is a core mechanism that protects this trust, thereby realizing the right to counsel. However, the current Korean legal system does not explicitly stipulate ACP. Related provisions, such as the duty of confidentiality under the Attorney Act or the rights to refuse seizure and testimony under the Criminal Procedure Act, exhibit clear limitations in scope, subject (holder), and exceptions, thus failing to function as effective protective measures. Consequently, sensitive information is leaked through searches and seizures of lawyers’ offices by investigative agencies, leading to serious problems such as infringement of clients’ right to defense and discouragement of corporate compliance activities. Theoretically, ACP is justified by its role in ensuring the effective guarantee of the right to counsel, realizing the principle of equality of arms and the right to a fair trial, enhancing public trust in the overall justice system, and contributing to the rule of law. Considering the deficiencies of the current legal framework and the passive stance of the Supreme Court, seeking remedies through case law development is unlikely to be effective, making institutionalization through explicit legislation urgent. Major advanced nations also operate systems corresponding to ACP in various ways—such as the evidentiary privilege in common law systems (e.g., US ACP, UK LPP) or strong professional secrecy combined with procedural controls in civil law systems (e.g., Germany, France)—strongly protecting confidential communication between lawyers and clients. This offers important implications for designing a system in Korea. Of course, concerns surrounding the introduction of ACP also exist, including the potential hindrance to discovering substantive truth, the risk of abuse (such as hiding evidence), and issues of incompatibility with Korean legal culture. Therefore, discussions on introducing ACP must focus on finding a balance that addresses these concerns while fulfilling constitutional requirements. Based on the premise that explicit legislation is unavoidable, this paper proposes legislative principles for harmonizing substantive truth and fundamental rights: 1) Clarity of legislation, 2) Reasonable scope of protection (limited to confidential communications for the purpose of legal advice), 3) Strict and specific limitations on exceptions (specifying grounds like the crime-fraud exception, excluding vague ‘public interest’), 4) Establishment of effective procedural control mechanisms (e.g., objections during searches, sealing of materials), and 5) Clarification of the rights holder (client as the principal rights holder, lawyer with a procedural role). Ultimately, introducing a balanced ACP system is not merely about protecting the interests of the legal profession, but a constitutional task essential for substantively guaranteeing citizens’ fundamental rights and securing the fairness and legitimacy of criminal justice procedures. Through sophisticated legislative design considering Korea’s legal reality and social trust structures, it will be possible to establish an important institutional mechanism that harmonizes the two values of discovering substantive truth and guaranteeing fundamental rights.