피해자 국선 변호사 역할과 과제

Abstract

Article 12 Clause 4 of the Constitution of the Republic of Korea provides for the assistance of lawyers. “Anyone who is arrested shall have the right to be assisted immediately by a lawyer.” When a criminal defendant is unable to seek an attorney for himself/herself, the State shall assign a lawyer as prescribed by law.｣ Criminals may, of course, be protected by the appointment of a lawyer when they are investigated by an investigative agency on the basis of the Constitution. Article 33 Clause 1 of the Criminal Procedure Act also specifies the assistance of counsel. The spirit of the constitution was reflected. ｢If it falls under certain conditions and is necessary to protect the rights of criminal offenders, a lawyer shall be selected as necessary. If the economically poor or the physically and mentally handicapped cannot appoint a lawyer, the state protects the defendant's rights in selecting a public defender.｣
 But what laws are the victims of crime protected by? Article 10 of the Constitution of the Republic of Korea stipulates the “right to pursue happiness of all citizens.” Article 11 of the Constitution stipulates equal rights for all citizens. Clause 2 of Article 294-2 of the Criminal Procedure Act guarantees the right of victims to state. However, other than that, there are no other regulations protecting victims' rights. Thus, it received a lot of criticism. ｢① After a crime incident, secondary damage is inflicted. ② Victims of a crime shall not be directly involved in an investigation or trial. ③ All citizens are equal.｣ Due to these criticisms, the victim's lawyer system was introduced in 2012. The system of public defenders for victims has been in effect since March 6, 2012. Nevertheless, the system has not been properly established in criminal practice yet. Therefore, confusion has continued. This is because the scope and rights of lawyers for victims of crime and their status in litigation are unclear.
 Germany settled the issue of protecting victims of crime in 1998 by enacting new legislature. “Act on the Protection of Witnesses and the Improvement of Victims’ Protection when interrogating witnesses in criminal cases: The Witness Protection Act.” Germany clearly defined the rights of crime victims to counsel by the law. Since then, the law has been constantly revised. The rights of crime victims to counsel became victims' rights. Article 395 of the German Criminal Procedure Act stipulated the private prosecution system and the participation system in a public prosecution. Crime victims are equal litigants. It is a legal position recognized by the Criminal Procedure Act. According to the German Criminal Procedure Act, the protection of witnesses has been strengthened. You can exclude the accused and interrogate the witness. Also, it is possible to read a report and record a witness on a tape recorder.
 Japan has also introduced victim’s participation system. Victims and victims’ lawyers may appear at the trial date and ask the defendant for a witness. Opinions on the confirmation of facts or the application of laws may be stated in the trial. The protection of crime victims has been strengthened. This is the crime victim’s protection system in Germany and Japan.
 The spirit of the Constitution is urging more rights for crime victims. The Criminal Procedure Act should establish a stipulation for the protection of victims. The legal rights of the victim’s lawyer should also be clearly defined. Only then, can victim lawyers be more active for victims in the investigation and trial stages with legal grounds. The assistance of the investigative agency alone is not enough. You can refer to the German Criminal Procedure Act and the Japanese Criminal Procedure Act.