형사공공변호인 구상의 구체화를 위한 방안 연구 - 피의자국선변호 제도의 바람직한 설계를 위한 제안 -

초록

Free legal assistance by state in criminal justice had been only provided for an accused after prosecution in Korea. But it was recognized for a suspect arrested during investigation by revising the Criminal Procedure Act in 2006. Nevertheless, it is only limited assistance to a suspect in the process of detention warrant issuance, not proper assistance of investigation process in general. There is no free legal assistance by a legal counsel during the initial stage of investigation before detention. Under this circumstances Moon Jae-In’s new administration officialized a public defender system for the protection of people’s human rights in criminal justice as one of 100 pledges which the administration will pursue for the next 5 years. This system will be reported to gradually started from 2019. The question is how to realize this system. New administration’s idea does not mean as the US public defender itself, but mean free legal assistance by a legal counsel in whole investigation process. Therefore, bar associations, understanding it as free legal assistance during investigation, need to play a leading role to suggest ways to implement new administration’s idea. State led approach for free legal assistance during investigation would be not welcome to lawyers who want independence from government. Rather, lawyers led approach where they play a key role in free legal assistance would be more desirable and welcome to lawyers as well as to bar associations. This does not mean that this system shall be directly run by bar associations. Free legal assistance for a suspect at initial stage of investigation must be performed in fast and systematic manner, which is difficult to run by bar associations. There is doubt whether a civil organization like a bar association will do good in this way. It can be understood as reasonable that bar associations do not run state appointed legal counsel in UK as well as in Japan. As such a result, author suggests that new public defender system shall be run by an independent commission, strongly connected with bar associations. This is inspired by British Duty Solicitor Scheme and recently changed Japanese free legal assistance system.

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