辯護人의 眞實義務와 陳述拒否權 行使勸告 - 대법원 2007.1.13.자 2006모656 결정

• 영문명: Lawyers" Duty to Tell the Truth and Recommendation to Exercise the Right to Remain Silent
• 발행기관: 중앙대학교 법학연구원
• 저자명: 金亨埈(Hyung-Joon Kim)
• 간행물 정보: 『법학논문집』法學論文集 第31輯 第1號, 263~276쪽, 전체 14쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.08.30

영문 초록

  Lawyers in the criminal procedures should assume a public "guardian" status to cooperate in the legitimate enforcement of governmental criminal sentences. In this regard, it is beyond dispute that lawyers in criminal cases should tell the whole truth. True as it may be, the attorneys" public “guardian" status should be differentiated from that of prosecutors who should be in pursuit of substantive truth, simultaneously focusing on achieving the protective functions of criminal system. That is, the public "guardian" status of criminal lawyers finds its distinction from that of prosector in that the former puts first and forefront priority on its clients" best interests and secure the substantive truth within the scope of due process through continuous struggles with courts and prosecutors. In this sense, it may well be that criminal lawyers are obliged to be more aggressive and thorough in protecting their defendant clients based on duty to protect their clients which preempts the duty to tell the truth.
  Therefore, the positions of the Supreme Court in this case should be duly noted that “while lawyers should assume the duty to tell the truth according to the Korea"s Code of Professional Responsibility, it is also their duty as well as right to provide legal counsel to their clients in detention and cannot be regarded to be contravening their duty to tell the truth by informing his client of the constitutional right to remain silent and then recommending excercise of this right, not engaged in positively advising false statement, deception, conceit, or misrepresentation.”

목차

Ⅰ. 사건개요 및 결정이유
Ⅱ. 연구

키워드

형사변호인의 의무(criminal lawyers" duty) 변호인의 공익적 지위(lawyers" public guardian status) 진실의무(duty to tell the truth) 보호의무(duty to protect their clients) 진술거부권의 행사권고(recommendation to exercise the 5th amendment)