변호사의 이익충돌과 변호인의 조력을 받을 권리(대법원 2009.02.26. 선고 2008도9812 판결 및 대법원 2004. 11. 26. 선고 2004도5951 판결) = Counsel’s Conflict of Interest and the Right to Assistance by Counsel

다국어 초록 (Multilingual Abstract)

“Conflict of interest” refers to a situation where the interests of the parties involved are opposite to, and thus conflict with, each other.
In criminal cases, the issue of pleading in violation of the obligation to avoid conflict of interest needs to be reviewed by considering the characteristic of the current criminal procedure which incorporates an element of the ‘ex officio principle,’ which distinguishes the criminal procedure from the civil procedure, and by reinterpreting the right to assistance by counsel prescribed in the Constitution. ‘Assistance by counsel’ should be understood to mean ‘meaningful assistance by counsel,’ which refers to ‘effective assistance by counsel.’ The right to effective assistance by counsel must be protected as a fundamental right under the Constitution, and the effect of violation of that right should be the same whether the counsel was appointed by the state or the defendant.
In this sense, identifying the issue of deficient defence violating the obligation to offer effective assistance in terms of the issue of disciplinary action by a bar association or compensation for damage based on the breach of a private contract between the counsel and the client would prove to be problematic for the purpose of effectively ensuring this constitutional right.
A criminal counsel is much more than an attorney representing a defendant in a criminal litigation: a criminal counsel is a public being tasked with protecting the rightful interests of a defendant, and constitutes an essential component of the structure of criminal procedure based on the adversary system. Therefore, deficient defence violating the obligation to avoid conflict of interest should be regarded as direct violation of the fairness and appropriateness of criminal trial itself: then, it should constitute a cause for reversing and remanding the original conviction, or a cause for retrial.
In Case 1, the Court held that ‘violation of restriction on acceptance of case under Article 31 (1) of the Attorney-at-law Act does not infringe on the defendants’ right to assistance by counsel, or nullify the legal proceedings,’concluding that their right to assistance by counsel was not infringed upon. However, whether the defendants appointed the counsel themselves is not significant, in that most defendants are not even aware of the existence of the obligation to avoid conflict of interest. Therefore, the conclusion of the Court in this case cannot be justified, because the defendants’ right to assistance by counsel was in fact infringed upon.
In Case 2, which involves pleading by a public defender who violated the provision on restriction on acceptance of a case, the Court held that the pleading by the public defender in violation of the said provision infringed on the right to assistance by counsel. Despite the limitation that the Court emphasized the right to assistance by public defender, this judgment is highly significant in that it expanded the issue of conflict of interest into the issue of the right to assistance by public defender, which forms a part of the right to assistance by counsel. Be it a counsel appointed by the State or the defendant, deficient criminal defence by a criminal counsel should be viewed in terms of the infringement of the right to effective assistance by counsel. It will require considerable amount of research and changes in the court’s position with regard to the subject matter.