Attorney-client privilege and the criminal evidence

Regarding the attorney-client privilege, there is only Article 26 of the Attorney-at-Law Act regarding the “attorney’s duty to maintain confidentiality,” but there are no explicit provisions in the Criminal Procedure Act, Attorney-at-Law Act, or Civil Procedure Act. It is impossible to extract specific rights under the Criminal Procedure Act, such as resist of seizure and refusal to testify, from the right to receive assistance from an attorney under the Constitution, but it is clear that securing the contents of communications between an attorney and a client in a lawyer’s office and attempting to use them as evidence of the client’s guilt later undermines the right to receive assistance from an attorney. This paper does not assume that ACP is accepted as is in our current law, but rather attempts to determine the extent of the scope that can be resolved within the current regulations and the extent of the limitations of the current system. According to Article 112, even if there was a confidential conversation between the lawyer and the client and the conversation was documented, it does not fall under the category of “objects” and therefore does not fall under the grounds for refusal to seize under Article 112. However, when considering Article 112 in conjunction with the right to refuse to testify under Article 149, documents that can be refused to testify can be subject to refusal to seize under Article 112, and this interpretation is also possible under the current interpretation. Of course, even in that case, it must be in the lawyer’s possession and custody. If the confidential exchange between the lawyer and the client is documented and in the client’s possession, it is difficult to see it as a ground for refusal to seize based only on the current interpretation of Articles 112 and 149. This point is the subject of the previously introduced Seoul High Court decision 2008 No. 2778. We can say that it is also acknowledged in this case, but this interpretation goes beyond the current Article 112, and considering that it is linked to Article 149, which is also intended to preserve the intent of the attorney's right to refuse to testify, it is difficult to develop such an interpretation. In this case, the safest way would be to accept ACP and resolve it, and it is thought that the contents of the amendment and the directions for revision presented in prior studies started from this sense of problem. Considering these problematic points, it seems possible to include precautions for ACP in search and seizure warrants (providing execution guidelines or notifying the right to refuse seizure), establish guidelines that can clearly determine the significant public interest necessity in the reasons for refusing seizure, or actively reflect the contents of the communication between attorneys and clients in the quasi-appeal procedure. ACP is not for the convenience of individual lawyers, but is designed with the right to receive legal assistance and trust in the judicial system based on it in mind, so I think that harmonious operation with the discovery of the truth is possible within the scope of the current system regardless of whether ACP comes into effect. It is expected that the direction of the collection and use of evidence related to ACP in criminal cases should be reorganized so that administrative cases, civil cases, and cases involving in-house lawyers can be resolved.