Right to counsel means a defendant has a right to have the assistance of counsel (i.e.,
lawyers), and if the defendant cannot afford a lawyer, requires that the government appoint
one or pay the defendant’s legal expenses. The right to counsel is generally regarded as a
constituent of the right to a fair trial. Historically, however, not all countries have always
recognized the right to counsel.
The right is often included in criminal law and constitutional law etc. First, any person
who is arrested or detained shall have the right to prompt assistance of counsel. When a
criminal defendant is unable to secure counsel by his own efforts, the State shall assign
counsel for the defendant as prescribed by act in article 12(4) of the constitutional law.
Second, the defense counsel or a person who desires to be a defense counsel may have
an interview with the defendant or the suspect who is placed under physical restraint, deliver
or receive any documents or things and have any doctor examine and treat the defendant
or the suspect in article 34 of the criminal law.
Nonetheless, problems about guarantee of the rights to counsel to the national security
violators like spy terrorist and etc will be important for Koreans to consider. That is because
national security violators’s cases are qualitatively different from general criminal offense’s
cases and historically, lawyer obstruct a investigation in the process of examination of a
suspect for national security violators.
Therefore, this study suggest a way that a restriction the rights to counsel with an attorney
in cases of the national security violators. To this end, in this paper, I touch on restriction
of right to counsel during interrogation in the England and Germany etc in comparison to
that of Korea and review Korea’s Supreme Court decision and Constitution Court decision
to understand the prospective and trends for Korean investigation procedure improvement.