Judge Recusal System in the U.S. and Korea - With a Discussion on How to Reduce Preferential Treatment of Former Judges -

공영호 경희대학교 법학연구소 2016 경희법학 Vol.51 No.4

When the existence of conflict of interest or bias will prevent the judge from rendering fair and just decision, it may become necessary for that judge to recuse himself or herself. However, if the judge refuses to recuse sua sponte or ignores the necessity of recusal, it will be important for an adversely situated party to request a recusal by filing a motion to that effect. The recusal of judges either sua sponte or by motion would be important in guaranteeing the fairness of the judicial rulings by removing the actual or appearance of bias or conflict of interest. The downside of judge recusal is that some attorneys or parties may try to abuse it as a tactical matter to delay the trial process or simply to replace the presiding judge with the one whom they prefer. Also, a judge’s recusal sua sponte should not result in a situation where a party loses a right to appeal. A practical concern hampering a party’s motion to recuse exists due to the reality that the same judge whose impartiality was challenged will continue to hear and decide the case once the motion is denied. The U.S. Congress provides the standard for judge recusals which calls for the recusal of a judge when “his impartiality might reasonably be questioned.” This objective standard requires a judge to recuse himself only if there is an appearance of bias let alone the existence of actual bias. But a problem still exists in that the presiding judge is the same judge who makes the final decision as to whether or not his interest was sufficient enough to warrant recusal. The current appeal process as to the non-recusal decision to the appellate courts would not provide an adequate remedy. It seems that there are two important and effective measures to deal with the issue associated with judge’s denial of recusal requests. First is the creation of independent board/panel which should review the facts and determine the appropriateness of the judge’s decision not to recuse. Second is the requirement that the judge who declines to recuse submit the written opinion to show the reasons not to recuse so that arbitrary and capricious decisions may be verified. In Korea, the practices have been ‘customarily’ engaged by the former judges who became lawyers by attempting to influence the courts by abusing their previous judgeship or personal relations with the presiding judge. The most effective measure against the attempts to interfere with judicial administration would be to use the judge’s recusal system in the objective and strict way as warranted. If the judge does not recuse sua sponte despite the existence of actual or apparent bias under the objective standard and the party files a motion to recuse, such motions should be heard and decided by an independent board. Also, the courts should re-assign judges when there is a conflict of interest or a possibility of the attorney’s tempering of judicial administration. And the judges whose impartiality can be reasonably questioned due to the public relationship or private connection with the lawyer in case should freely request the courts to re-assign the case.

법관법의 법원성에 대한 유형적 탐구—독일 학계의 논의를 중심으로—

이계일 한국법철학회 2016 법철학연구 Vol.19 No.2

This study is intended to review a range of arguments on whether the judge-made law is a source of law from the perspective of the theories that recognize the legal status of the judge-made law as a source of law or partially recognize the legal status of the judge-made law as a source of law(i.e. a theory of the presumptive or subsidiary source of law) and the theories that deny the legal status of the judge-made law as a source of law. For the theories that recognize the legal status of the judge-made law as a source of law, the author will address the views of Bernd Rüthers. For the theories that partially recognize the legal status of the judge-made law as a source of law, the author will address the views of Martin Kriele and Franz Bydlinski. For the theories that deny the legal status of the judge-made law as a source of law, the author will address the views of Karl Larenz and Klaus Röhl. Based on an analysis of a range of arguments on the judge-made law, the controversial points and implications to be reflected in the approach to the judge-made law can be obtained and these will serve as a foundation for my comprehensive study concerning the legal status of the judge-made law as a source of law, the legal binding of precedents and the retroactive effect of case law change and so on. However, as the space for the author is limited, in this study the author will focus on extracting the controversial points and implications to be considered in the study of the judge-made law based on an analysis of a range of theoretical types of the judge-made law and will put forth his opinions comprehensively in future studies. 본 연구는 그동안 법관법이 법원인지의 문제를 둘러싸고 진행된 여러 논의를 법원으로서의 지위 긍정론, 부분적 긍정론(이른바 추정적 혹은 보충적 법원론), 법원으로서의 지위 부인론으로 나누어 살펴보고자 한다. 지위긍정론은 주로 뤼터스의 견해를 중심으로, 부분적 긍정론은 크릴레, 비들린스키를 중심으로, 그리고 지위부정론은 라렌츠, 뢸의 견해를 중심으로 그 내용을 살펴보게 될 것이다. 법관법을 둘러싼 다양한 논의에 대한 분석을 기반으로 법관법에 대한 접근이 고려해야 할 주요 논점 및 통찰이 획득될 수 있어야 할 것인데, 이는 법관법의 법원으로서의 지위, 선례의 구속력, 판례변경의 소급효 등에 대한 필자의 종합적 탐구가 이루어질 수 있기 위한 기반이 되어 줄 것이다. 하지만 한정된 지면관계상 필자의 입장에 대한 종합적 개진은 추후의 연구에로 남겨 두고, 본 연구는 법관법의 여러 이론적 유형에 대한 분석을 기반으로 법관법 탐구가 고려해야 할 논점 및 통찰을 추출해 내는 데에서 마무리 짓고자 한다.

미국 연방법관 탄핵에 관한 연구

이준범 성균관대학교 법학연구원 2020 성균관법학 Vol.32 No.2

Many Korean judges were indicted because of their roles regarding the recent judicial scandal. But so far no judge was impeached. If any judge is impeached, then the U.S. history of impeaching federal judges may be informative. Because U.S. Senate does not write a formal opinion about why the Senate chose to, or chose not to, convict an impeached civil officer, in other words, because the Senate decides on both the facts and the law without giving its reasoning, it is difficult to figure out why the Senate chose, or chose not, to do so. But when the Senate does decide to convict, it is possible to infer from the conviction that the Senate not only found the alleged facts have been proven but also the proven facts are facts that, by law, could be a ground for conviction. Under this logic, the following rules can be inferred. The fact that judge Ritter was convicted shows that the Senate decided that a federal judge can be convicted for betraying public confidence even though the judge may not have violated a specific statute. The fact that Judge Hastings was convicted shows that a federal judge can be convicted even though the judge was acquitted in a related criminal trial. The fact that Judge Porteous was convicted shows that a federal judge can be impeached for conducts by the judge conducted before the judge became a federal judge. Lastly, the fact that Judge Claiborne was convicted shows that a judge may be convicted for conducts not directly related to the office. 현재 사법농단 사건들에 관하여 많은 법관들이 기소되어 그들에 대한 형사사건들이 계속 중이다. 그러나 법관들 누구에 대하여도 탄핵소추가 이루어지지 않았다. 만약 탄핵이 적극적으로 검토될 경우 이미 수차례 법관을 탄핵한 미국의 경험이 참고가 될 수 있다. 미국 상원은 탄핵심판에 대한 판단 이유를 문서로 남기지 않는다. 상원에 주어지는 질문은 사실의 인정과 법리에 대한 판단을 둘 다 요하므로 인용에 반대한 이유가 소추사실이 인정되지 않기 때문인지 아니면 소추사실은 인정되나 그 사실이 법리상 탄핵사유가 아니라고 판단했기 때문인지 구별하기 어렵다. 다만 탄핵이 인용된 경우 이는 소추사실이 인정되고, 그 사실이 탄핵사유에 해당한다고 판단하였다고 평가할 수 있다. 이 논리에 의하면 미국 상원은 특정 법률을 위배한 사실이 인정되지 않더라도 공적인 신뢰를 위반한 사실만으로 탄핵을 인용할 수 있고, 관련 형사사건에서 무죄가 선고되었더라도 탄핵을 인용할 수 있으며, 연방법관 직 이전에 있었던 일에 대하여도 탄핵을 인용할 수 있고, 직무와 관련이 없는 행위에 대하여도 탄핵을 인용할 수 있다는 각 법리를 인정하였다고 할 것이다. 만약 법관들에 대한 탄핵 사건이 개시된다면 이러한 미국 법리들은 한국의 헌법, 법률 및 대통령에 대한 탄핵심판에 관하여 헌법재판소가 인정한 법리들에 비추어 함께 참고할 수 있다.

민사소송 심리절차 진행에 있어서 법원의 소송지휘권 행사

권혁재 대한변호사협회 2014 人權과 正義 : 大韓辯護士協會誌 Vol.- No.439

The Korean Civil Procedure Law has adopted presiding civil procedure by judge’sown authority concerning progress of the civil proceedings to place responsibility on judges(court). This can have a significant impact on the formal aspect of the case that ensure party’s right toparticipate according to the adequacy of judge’s presiding power as well as on practical aspects oflitigation to investigate the entity relationship of the issue faithfully. To conduce party’s truesurrender on the court’s ruling, the conclusions should be issued through constant mutualnegotiations or exchange of ideas and not the conclusion comes from proceeding based on court’sunilateral and authoritarian attitude. Recently, the reform of the civil litigation system focusingprocedure of civil trial is in progress and it is tend to look for compromise between presiding civilprocedure by judge’s own authority and adversary is common. This trend is reflected in the national and international academic community with regard to the role of the court contracts on civil trialand agreement by each party and judge have been raised. In terms of exercising of judge’spresiding power, there is a need to have cause analysis and the corresponding measures oninadequate exercising of judge’s presiding power from the perspective that it is necessary to haveagreement between the court and the parties by mutual communication and discussion. As apractical measure for this, there are some ways to recognize formal objection and appeal rightsabout illegal or unfair judge’s civil procedure presiding. Furthermore, there is a need to make judges must clarify the reasons of decision and persuadethe parties to prevent illegal or unfair judge’s civil procedure presiding. In addition to this specificaction plan, the exercise of the right to avoid the judge will also be recognized if there arereasonable and objective grounds to show the judge’s civil procedure presiding is unilaterallydisadvantageous on either of the parties. 민사소송의 직권진행주의 원칙 하에서 법원은 소송지휘권의 행사를 통하여 소송절차 전체를주재하는 권능을 행사한다. 소송지휘권 행사의 적절성 여부에 따라 질서를 갖추면서 당사자의 절차참여권을 충분히 보장하여야 한다는 소송의 형식적 측면은 물론 사안의 실체관계를 충실하게 규명하고자하는 소송의 실질적 측면에 있어서도 중대한 영향을 미칠 수 있다. 법원의 판결에 대한 당사자로 부터의 진정한 승복을 이끌어 내려면 법원의 일방적인 독주와 권위적 태도에 입각한 절차진행으로부터 나온 결론이 아니라 당사자와의 부단한 상호 교섭‧의견교환을 통하여 내려진 결론이어야 한다. 최근에심리절차를 중심으로 하여 민사소송제도의 개혁이 진행되면서 직권진행주의와 당사자주의의 절충점을모색하는 경향이 일반화되고 있다. 이러한 경향을 반영하여 국내외의 학계에서 법원의 역할과 관련하여 3자 합의에 의한 절차진행론이 제기되고 있다. 소송지휘에 있어서도 법원과 당사자 사이의 협의 및토론에 의한 상호 소통이 필요하다는 전제에서 법관의 부적절‧부당한 소송지휘의 원인 및 이에 대한대책이 필요하다. 이에 대한 실질적 대책으로서는 위법‧부당한 소송지휘에 대한 이의신청 및 항고권을인정하는 방안이 있다. 그리고 위법‧부당한 소송지휘를 사전에 예방한다는 취지에서 법관으로 하여금소송지휘권 행사시에 그 이유를 밝히게 하여 당사자를 설득하는 노력을 다하도록 하여야 할 필요가 있다. 이러한 구체적 방안 외에도 소송지휘가 당사자의 어느 한 쪽에 일방적으로 불리한 것으로 보이게하는 합리적‧객관적 사유가 있다면 기피신청권을 행사하는 것도 인정하여야 할 것이다.

From Classical Naturalism to Neo-Institutionalism: the Role of the American Judge in Judicial Decision-Making

Xin Li 행정언어와 질적연구학회 2014 행정언어와 질적연구 Vol.5 No.1

Classical legality tried all its might to keep law safe from politics; adjudication was either cast in declaratory terms or seen as strict application of rules; the judge was depicted as a featureless shadow of the law. General acknowledgment of the “open texture” in the first half of the twentieth century threw light on the dark box of judicial decision-making; the rise of legal realism initiated an unprecedented open discussion over the long obscured fact that judges, besides determining facts and interpreting laws, do make public policy choices. In the mid 20th century, political jurisprudence, including behavioralism and neo-institutionalism, offered a unique and revolutionary perspective by presenting judicial decision-making not as an autonomous organism but an integral part of the larger political process. Behavioralism saw judicial decision-making as a conscious and deliberate policy choice judges make in accordance with their partisan allegiance. New insitutionalism, however, criticized the exclusion of law and institutions in the behavioralist analysis and conceptualized the judicial decision-making process as a dynamic interplay of the legal doctrines, the judge and the institutions. Through a critical investigation into the academic terrain of judicial decision- making, its unfolding development and internal contentions, this thesis aims to explore the role of the American judge within the judicial decision-making scenario. The main body of this thesis consists of three chapters. Chapter One critically reviews the traditional jurisprudence, including the classical common law jurisprudence and the legal positivism that characterized the judge as either the detached interpreter or solely devoted to the scientific application of law. The rest of this chapter is devoted to a critical examination of American legal realism’s deconstruction of the mechanical, faceless, rule-bound figure of a judge. Against this historical backdrop, Chapter Two looks into the mid 20th century inroads made by political jurisprudence and the attitudinal model that swept through the academic terrain of judicial decision-making. This position, later known as the attitudinal model, was to be vehemently criticized by neo-institutionalist scholars as simplistic in its understanding of human behavior, reductionist in its erasure of legal doctrines and institutional restraints, and utilitarian in its notion of human rationality and autonomy. Chapter Three tries to probe into the theoretical core of the three branches of new institutionalism and their internal debates, building upon the eclectic, path- dependent, and multi-dimensional historical institutional paradigm to explore the dynamic and mutually constitutive interplay of legal doctrines, the judge and the institutions.

법관법의 대상영역과 규범적 힘에 관한 연구

이계일 ( Lee Kye Il ) 연세대학교 법학연구원 2016 法學硏究 Vol.26 No.3

This study examined how to understand judge-made law and its normative binding, based on the typological classifications of all prominent theories, which are set forth surrounding the normative status of judge-made laws. While recognizing that the legal interpretation/application by the judge may create the actual meaning of law, this study considered that it is more valid to approach this problem in the way of the illumination of intrinsic nature of legal interpretation/application, rather than highlighting through the title called judge-made law. By doing so, it settled that it is proper to limit the object area of judge-made law to ‘the area in which rule-making of law by the court is affirmed’ and ‘the area of blanket clauses/vague norms that is considered to delegate concretion of legal meaning to the judge.’ However, even while limiting the object area of judge-made law to the area of rule-making of the court and concretion of blanket clause that are differentiated from legal interpretation, it was considered that the issue of ‘binding of precedents’ could be expanded to the usual legal interpretation area. It is because the binding of precedents is classified into a separate category as the issue of the binding of judge-made law. The issue of ‘whether to consider judge-made law as a separate source of law’ also was classified into a separate category as the issue of ‘normative binding of judge-made law’. Nonetheless, the position to understand the issue of a source of law of judge-made law in association with the normative binding of judge-made law was revealed to be more proper. It is regarded as the precondition of the normative binding of judge-made law that the application or overruling of the existing judge-made law can occur according to prior given criteria not depending on the outside arbitrary influence, as long as the existing judge-made law is identified relevant to the given case. And with respect to such criteria, the theoretical positions such as presumptive binding or subsidiary binding, which premises the burden of justification at overruling of the existing precedent, are not considered to satisfy the criterion of above normative binding. However, it was considered legitimate to derive the duty of justification on change of case law from the duty of justification that is settled as the sub-principle of the principle “rule of law”, which is where a certain normative force that the judge-made law has (different from legal binding authority) can be explained from. By denying the normative binding of judge-made law, this study also took the denying position of the judge-made law`s status as a source of law, and set forth that judge-made law is a content source of law that has a certain normative force. It also explained that the study doesn`t consider judge-made law as mere supplementary materials for decisions of the court, such as legal dogmatics or academic theories. In addition, the issue of the degree of burden of justification when intending to escape from precedent was examined, above all dividing the cases of supreme court decisions and lower court decisions. However, it was verified that the degree of duty of justification when escaping from precedent can be associated with how to construct the effect of overruling in the change of precedent: in other words, the form of overruling. This is where the judge-made law or binding of precedents is associated with the issue of retroactive effect of case law change.

미국연방지방법원 부판사제를 활용한 우리 법관임용시스템의 개선방안

함영주 한국민사소송법학회 2012 民事訴訟 : 韓國民事訴訟法學會誌 Vol.16 No.2

When the Korea law school system was introduced in 2008, the Supreme Court of Korea had a plan to new judge appointing systems. The plan is now expected to shake the foundation of the national judiciary system,in which top scorers of the examination have managed to earn the appointment right after they have completed their twoyear mandatory educational program at the Judicial Research and Training Institute. According to the reform plan submitted to parliament, those with more than three years of experience as prosecutor, lawyer, law professor or others will be able to be hired as a judge in 2013. The career qualification will be tightened to more than five years at such jobs from 2018 to 2019and more than seven years of experience could be hired judges from 2020to 2021. From 2022,only those with more than 10 years of field experiences will be hired as judge. Apart from prerequisites of these field experiences, I would rather try to investigate how to recruit new judges actually and what process is exactly needed. That's because longer years of field experience does not guarantee good judges. For this background, I am trying to investigate U.S. Federal magistrate judge's selection and evaluation system and try to apply the system into Korea judge appointing system. A magistrate judge's appointment is subject to a budget of Korea supreme court by the legislature's allowances. The vacancy is advertised that all the lawyers in the area of the court could have the opportunity to apply for the position. A news release is made to newspapers and broadcasting media in the district. After applications are received, magistrates selection panels determine the competence and experience qualifications which are the most important in selecting a magistrate judge. Standard form of questionnaires are distributed to each lawyer in the area, trying to assess applicant's qualifications. Prior to interviewing any applicants, background checks are made by the court and the results communicated to the court administrator who distributes the information to magistrate panels. Magistrates panels adopt are subject to standards of fairness, equal opportunity, and merit selection. The panel decides the method of voting in advance. The panel interview questions and each applicant should be asked questions so that the magistrate panel could compare the applicant's qualifications. Results of the appraisals are communicated by the magistrate panel through the court administrator to the individual judge. Results of the judicial appraisal remain absolutely confidential. This kind of magistrate judge selection system could also appropriate to get rid of the lawyer's privilege of his/her former judge post and to lower the barrier of justice for the common people.

법관은 두 개의 양심을 가져야 하는가? - 헌법 제103조 법관의 ‘양심’에 관하여

강석정 사법발전재단 2017 사법 Vol.1 No.41

Article 103 of the Constitution of the Republic of Korea provides, “Judges shall rule independently according to their conscience and in conformity with the Constitution and laws.” Traditionally, the mainstream position has been to interpret the “conscience” of a judge under Article 103 of the Korean Constitution as an “objective and professional” conscience, not a “subjective” conscience as a human being under Article 19 of the Constitution. According to this position, however, the judge turns out to be a curious being with both “subjective, non-judicial” conscience as a human being and “objective, judicial” conscience at the same time. As a result, it is not uncommon to hear from judges who confess that they experience conflict due to the clash between the subjective and objective consciences when presiding over trials. Against this backdrop, this article seeks to do the following: (a) review the developments surrounding the introduction of the concept of the judge’s “conscience” to the Constitution, as amended in 1962, the course of events leading up to the establishment of an interpretive theory in the constitutional scholarship ever since up to the present, and the latest, new perspectives on the judge’s “conscience”; and (b) compare conscience under Article 103 with that under Article 19 of the Constitution, and consider whether the intrinsic nature of conscience under Article 103 is objective, judicial, logical, neutral, and obligatory. Based on the above discourse, this article concludes as follows: (a) it is neither inherently appropriate, nor logical, nor practically useful to describe conscience as a concept comprising contrasting ideas by dichotomy between “objectivity versus subjectivity,” between “judicial versus non-judicial,” between “logic versus ethics,” and between “neutrality versus politics”; (b) in artificially attempting to structure the concept of judge’s conscience under Article 103 of the Constitution as an objective and neutral entity, the past mainstream position ended up giving a misleading impression as if judges have two inherently different, mutually clashing consciences; and (c) the cause for the situation can be found in linguistic system as well as the structure of ‘Western-Modern’ legal system. This is not to say that the judge’s conscience under Article 103 and that under Article 19 of the Constitution are identical even in terms of their constitutional function and status. From a fundamental, text and language point of view, Judge’s conscience under Article 103 features a strict restrictions under the Constitution and statutes, which is inevitably anticipated by the ‘Western-Modern’ legal system. The tension, friction, and conflict in the judge’s mind as manifested in the judge’s conscience under the restrictions of the Constitution and the laws(objective legal system) ought to be resolved, and can be resolved under certain conditions. Finally, based on the above analyses, this article seeks to address some of the practical legal issues, such as cases involving conscientious objection to military service and the issue of the jurors’ conscience under the Act on Citizen Participation in Criminal Trials. 대한민국 헌법 제103조는 “법관은 헌법과 법률에 의하여 그 양심에 따라 독립하여 심판한다.”라고 규정한다. 종전의 다수 입장은 헌법 제103조에서 말하는 ‘양심’은 헌법 제19조에서 말하는 인간으로서의 ‘주관적’ 양심이 아니라, 법조인으로서의 ‘객관적·직업적’ 양심이라는 것이고, 그렇다면 법관은 인간으로서 주관적·비법조적 양심을 가지면서 동시에 객관적·법조적 양심을 가진 기이한 존재가 된다. 그 결과 실제 재판에서 법관들은 주관적 양심과 객관적 양심이 충돌하고 이 때문에 갈등을 겪고 있다는 취지의 고민을 토로하고 있다. 본고에서는 우선, 1962년 헌법에 법관의 ‘양심’이 도입된 경위, 그 이후부터 현재까지 헌법학계의 해석론이 정립된 과정을 살펴보고, 최근에 새로운 시각에서 법관의 ‘양심’을 이해하는 입장들을 살펴보았다. 다음으로, 헌법 제103조의 양심을 제19조의 양심과 비교하면서 제103조의 양심이 본질적 속성에 있어서 객관적, 법조적, 논리적, 중립적, 의무적인 것인지 등을 검토하였다. 그 결과 양심이란 ‘객관 대 주관’, ‘법조 대 비법조’, ‘논리 대 윤리’, ‘중립성 대 정치성’ 등의 이분법적 도식으로 설명하기에 본질적으로 적절하지 않고, 이러한 도식적 접근은 논리적이지 않으며 실무상으로 유용하지 않다고 보았다. 종전의 다수 입장은 헌법 제103조 법관의 양심을 애써 객관적이고 중립적인 어떤 실체로 구성하려다 보니, 법관은 애초 본질이 다른 두 개의 양심을 가지고 있고, 두 개의 양심이 상호 충돌하는 것처럼 오해하게 만들었는데, 이런 사태의 원인은 서구 근대 법학 체계, 언어 사용 체계에서의 소위 ‘괄호 넣기’ 작업의 불가피성 때문이다. 하지만, 헌법 제103조 법관의 양심이 제19조 인간의 양심과 헌법상의 기능이나 위상까지 동일한 것은 아니다. 제103조 법관의 양심은 근원적·문언적으로 ‘헌법과 법률’에 의하여 강한 제약을 받는다는 점에 그 특징이 있고, 이는 서구 근대법 체계가 필연적으로 예정한 것이다. 그리고 헌법과 법률(객관적 법질서)의 제약하에 놓인 법관의 양심이라는, 다시 말해 ‘긴장’, ‘충돌’, ‘갈등’ 등으로 표현되는 상황은 해소되어야 하고, 일정 조건하에서 해소될 수 있다. 마지막으로 이상의 분석을 통하여, 법 실무에서 현재 첨예하고 문제 되는 소위 양심적 병역 거부 사건, 국민의 형사재판 참여에 관한 법률과 관련하여 향후 개정 과정에서 문제될 수 있는 배심원의 양심 문제도 해결해 보고자 하였다.

论中国法官惩戒机制的偏差与修正

朱 福勇,한상돈 아주대학교 법학연구소 2018 아주법학 Vol.12 No.3

The punishment of judges is especially important for the realization of judicial justice, the promotion of judicial reform and the protection of civil rights. Due to China’s long-term misunderstanding of the nature of judicial power, the misinterpretation of judicial power restrictions, the deviation of the standards set by judges and the deviation of disciplinary procedures, To a certain extent, restricting the judge's disciplinary mechanism should play a role, which is related to the influence of administrative organization logic on the penetration of the judiciary, the drive of “mistaken case investigation”, the promotion of performance evaluation, the quality of judges and the constraints of the judicial environment. Therefore, the ultimate goal of "the judge's referee and the referee is responsible" is locked. While the trial guarantees the independence of the trial and regulates the operation, the judges adhere to the understanding of the law and follow the rules of the procedural law. For a reasonable referee. On the subject of disciplinary action, the disciplinary committee of the judges who are responsible for exercising the disciplinary power of the judges is set up by the provincial courts to hear complaints or reports from the public on the judges. The supervision office of the courts at all levels is responsible for investigating the judges involved; In terms of reasons, it is externalized as a judge's misconduct, and some unreasonable assessment indicators are discarded. In terms of disciplinary procedures, the procedural nature of the judiciary is demonstrated in terms of case acceptance, investigation, handling, and relief, and the judge's disciplinary cases are treated objectively and fairly. In terms of disciplinary measures, including warnings, fines, suspension of performance of duties, transfer from trial positions and exemption from trial positions, and presented in a progressive manner; in the punishment of judges, establish a corresponding system of exemption for judges to protect the functional mobility of the law To give judges an institutional guarantee for independent trials and to speed up the cultivation of judges' elites. Based on the judge's special legal elite group, and carrying the public's expectation of fairness and justice, the minimum rational model of the judge's behavior is established to ensure that the judge's disciplinary action works in a legal, standardized and orderly track. 法官惩戒对实现司法正义、推进司法改革和保障民权至关重要。由于中国长期以来, 对审判权性质的误读、审判权制约的曲解、法官惩戒标准设定的偏差和惩戒程序运作的 悖离等,一定程度上,制约法官惩戒机制应有功效之发挥。这与行政组织逻辑对司法的 渗透、“错案追究”的驱使、业绩考评的促动、法官素质的影响和司法环境的制约不无关 系。是以,锁定“审理者裁判、裁判者负责”这一终极目标,中国法院在依法保障审判独 立、规范运作的同时,坚守法官依据其对法律的理解,按照程序法的规定,诚实推演出 一个合理合法、当事人可接受的裁判结果。借鉴域外经验,结合实际,在惩戒主体上, 在省级人民法院以上设置法官惩戒委员会,负责行使法官惩戒权力,审理社会民众对法官 的投诉或检举,各级人民法院监察室负责对涉事法官的调查事项。在惩戒事由方面,限 于法官的不当行为,摈弃一些不合理的考核指标。在惩戒程序方面,从立案受理、调 查、处理以及救济等方面,彰显司法的程序性,保证对法官惩戒客观、公正。在惩戒措 施方面,包括警告、罚款、暂停履行职务、调离审判岗位和免除审判职务五种,并呈现 递进式。明确法官责任豁免范围,赋予法官独立审判的制度保障,加快对精英化法官的 培养步伐。由于法官这一特殊的精英团体,承载着民众对公平正义的期待,应当确立法 官行为的最低理性模型,从而把法官惩戒纳入合法、规范和有序的轨道上。 (법관징계는 사법정의의 실현과 사법개혁 및 민권보장에 있어 매우 중요하다. 중국은 오랫동안 재판권의 성격과 제약에 대한 오해와 곡해, 법관의 징계기준 설정의 편차와 징계절차 운영의 괴리 등으로 인하여 법관징계를 제약하는 메커니즘이 발생하고 있다. 이는 행정조직논리가 사법에 침투되어 오심사건을 추궁하거나 업적평가 및 법관 자질 영향과 사법환경의 제약과도 무관하지 않다. 중국 법원은 '심리자 재판, 법관의 책임'이라는 궁극적인 목표를 설정하고, 법률에 따라 재판의 독립과 운영을 보장하고 있다. 이를 통해 법관의 법률이해에 근거하고, 절차법의 규정에 따라 합리적이고 합법 적이며 당사자가 수긍할 수 있는 재판결과를 도출한다. 외국의 오랜 사법실무 경험을 참고하여, 징계의 주체로 성급 인민법원에 법관징계위 원회를 설치하고 법관에 대한 징계권을 행사한다. 또 법관의 실무에 대한 민원의 고발 이나 고발 및 각급 인민법원 감찰실이 담당하게 한다. 징계사유에 있어 법관의 부당행 위에 대하여는 일부 불합리한 심사표준을 배제함으로써, 징계절차 상의 사안접수 및조사와 처리, 그리고 구제 등에 있어 사법절차를 검토하여 법관에 대한 징계가 객관적 이고 공정하게 이루어지도록 보장하여야 한다. 징계조치에는 경고, 벌금, 직무정지, 전출, 직위면제 등 5가지를 포함한다. 법관의 재판수행에서 발생하는 책임에 대하여 법관의 독립재판을 보장하면서도 그 책임이 면제되는 범위를 제한함으로써 법관의 엘리트화에 박차를 가하여야 한다. 법관이라는 특수한 엘리트 단체가 ‘공정 및 정의’라는 국민의 기대를 충분히 만족시키기 위하여 법관책임제도를 확립하여 법관징계의 합법적이고 규범적 절차가 필요하다.)

법관의 부동성(不動性) 원칙과 공판중심주의

박형관 한국형사소송법학회 2023 형사소송 이론과 실무 Vol.15 No.4

Under the Korean Supreme Court Personnel Order, a regular transfer of judges to different jurisdictions is effected at preset terms. This practice is highly unusual and although the practice was undoubtedly a measure in securing a more sound legal system, troubling side effects have occurred. Two prominent examples include the undermining of the right of a citizen's right to a speedy trial and a weakening of the public trial principle. Changing judges during a trial is akin to changing an umpire during a sporting event. The practice is not only inefficient but places an unfair burden on the parties to reestablish their case anew before a new judge. This is an example of why most countries ensure the principle of judge immobility wherein judges are not moved to new jurisdictions nor promoted without consent. The public trial base principle maintains that a judge's decision in rendering a guilty or not guilty verdict should be formed mainly in the open courts. This principle includes the principle of direct evidence investigation, concentration of trial procedure, and public trials among others. In the past, Korea criminal procedure had depended largely on the principle of protocol trials, wherein a decision was largely based on the investigating agent's protocols. In an effort to correct the possible biased nature of the practice, the public trial base principle has hence been increasingly emphasized. When there is a change in the presiding judge, it is extremely difficult to ascertain the reasoning formed through the former trial procedure in rendering a guilty or not guilty decision. Even if the evidence is reinvestigated according to the renewal procedure of the trial, there are limits to what can clearly be reestablished. As a result, frequent changes in the trial bench are tantamount to practically undermining the public trial base principle. To ensure a citizen's right to a fair and speedy trial and successfully establish the public trial base principle, the principle of judge immobility must be guaranteed. This should be effected not merely as a judicial personnel policy but as a principle in securing the constitutional right of the victim as well as the defendant and in keeping with due process. There are two options to introduce the principle of judge immobility: a comprehensive approach or a gradual introduction. Should the latter be adopted, it should first be introduced at the district court level. Further, in facilitating the preliminary trail procedure and the public trial base principle, the introduction of a vice-judge appointing system would be highly beneficial. There has been an increasing delay in the trial procedure of major trials. It is high time to guarantee the principle of immobility of judges to ensure the right of citizens to receive fair and speedy trials and to further solidify the public trial base principle in our legal systems.