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TITLE 【Syllabus of Latest Opinion】Supreme Court Decision 2016Da266736 Decided December 27, 2018 【Damages (Etc.)】 [full Text]
Summary
[1] Whether the investigative agency may impose restriction through disposition, etc. on the defense counsel’s right to interview with the criminal defendant without recourse to law (negative)
In cases where the criminal suspect, who has an accurate understanding of the meaning and scope of the right to assistance of counsel under the Constitution of the Republic of Korea, but nonetheless willingly relinquishes the right based on his/her rational judgment, whether the defendant may be forced into interviewing with his/her defense counsel (negative), and in cases where the investigative agency disapprove the interview even though the above requirement is not satisfied, whether the State’s compensatory liability arising from the infringement upon the defense counsel’s right to interview is established (affirmative) and where the burden of proof thereof lies in
[2] In a case where: (a) Overseas Chinese A, born and raised in North Korea, entered the Republic of Korea and was admitted to and interrogated by the Central Joint Interrogation Center, a temporary protection facility installed and operated by the head of the National Intelligence Service (NIS) pursuant to the North Korean Refugees Protection and Settlement Support Act; (b) Defense Counsel B, etc., appointed as a counsel for Overseas Chinese A, made an application for interview on nine different occasions, which were rejected in their entirety by the head of the NIS and NIS investigators; (c) Defense Counsel B, etc. filed a claim for compensatory damages against the State on the ground of the infringement upon a defense counsel’s right to interview, a case holding that the lower judgment was justifiable to have determined that the State has the responsibility to compensate emotional and psychological harm inflicted upon Defense Counsel B, etc., as the head of NIS or NIS investigators’ rejection of Defense Counsel B, etc.’s request to interview with Overseas Chinese A infringed upon a defense counsel’s right to interview, and thus constitutes unlawful performance of duties
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