사법권독립과 민주주의의 조화 = 미국의 州법관선거제도에 대한 찬반논쟁을 중심으로

다국어 초록 (Multilingual Abstract)

This Article studies these principles and how their consideration affects choices in the configuration of a judicial election system at the level of states in the United States.
Judicial selection system of the United States has dramatically been changed and a lot of debates on whether state court judges should be elected directly by the people or selected by a Governor, Legislatures, or nominating commission have been recurrent throughout the American history.
Then, in the course of these debates, one of the most important issues is what qualities are necessary to improve a judicial selection system, I think. There are five qualities that a judicial selection system should be designed to advance: independence, accountability, representativeness, legitimacy, and transparency.
First, judicial independence is the idea that the judiciary needs to be kept away from the other branches of government. Second, judicial accountability is the concept that judges should be popularly accountable for their decisions and conduct in a democratic society. Third, representativeness is the idea that judges should generally be representative of the community in which they serve. Forth, legitimacy refers to the confidence of the public that the initial selection system itself comports with democratic principles. Fifth, transparency is the concept that the judicial selection proceedings are open to public view so that the public can see how the decision as to which judge is eventually chosen is made.
Among these principles, independence of the judiciary and accountability to the people are diametrically opposed. The best approach in dealing with these principles, therefore, is to consider the proper balance between two principles. Furthermore, although some of the other principles are not directly opposed, they are still in conflict with each others in judicial selection process. Because of this tension, and because these principles are not fully qualifiable, the balance among them should be emphasized.

참고문헌 (Reference)

1 이헌환, "헌법상 법관의 다양화방안과 신분보장" 대법원 2008

2 정종섭, "한국의 사법제도의 발전모델" 집문당 1998

3 박홍규, "사법의 민주화: 재판을 재판한다" 역사와 비평사 1994

4 문재완, "사법부의 독립성과 책임성 :미국의 법관징계제도를 중심으로" 미국헌법학회 16 (16): 195-232, 2005

5 김명식, "미연방 원로판사제도의 위헌성에 관한 연구" 미국헌법학회 20 (20): 219-253, 2009

6 김명식, "미국의 치안판사제도에 관한 일고찰" 법학연구소 9 (9): 117-149, 2008

7 김용헌, "미국사법제도론" 고시계 1993

8 林智奉, "司法權 獨立의 諸 問題" 한국공법학회 31 (31): 7-7, 2003

9 Kelly J. Varsho, "Who Is Paying The Highest Price For Judicial Independence" 27 : 445-, 2007

10 George W. Soule, "The Threats Of Partisanship To Minnesota's Judicial Elections" 34 : 701-, 2008

11 Vicki C. Jackson, "The Selection And Tenure Of Article III Judges" 95 : 965-, 2007

12 Brian P. Troutman, "The Politics Of North Carolina's ‘Nonpartisan’ Judicial Elections" 86 : 1762-, 2008

13 Nat Stern, "The Looming Collapse Of Restrictions On Judicial Campaign Speech" 38 : 63-, 2008

14 Leslie Southwick, "The Least Of Evils For Judicial Selection" 21 : 209-, 2002

15 David E. Pozen, "The Irony Of Judicial Elections" 108 : 265-, 2008

16 Richard B. Saphire, "The Ideologies Of Judicial Selection" 39 : 551-, 2008

17 Bronson D. Bills, "The High Price Of Judicial Elections" 3 : 29-, 2008

18 Charles Gardner Geyh, "The Endless Judicial Selection Debate And Why It Matters For Judicial Independence" 21 : 1259-, 2008

19 Stephen P. Daly, "The Conduct Commission And Agreed Disposition: Limiting Judicial Independence In Massachusetts" 42 : 509-, 2008

20 Mark A. Behrens, "The Case For Adopting Appointive Judicial Selection Systems For State Court Judges" 11 : 273-, 2002

21 Jessica Gall, "The Birth And Death Of Judicial Campaign Speech Restrictions" 13 : 97-, 2008

22 Kelly Taylor, "Silence At A Price: Judicial Questionnaires And The Independence Of Alaska's Judiciary" 25 : 303-, 2008

23 Kathleen M. Sullivan, "Republican Party Of Minnesota v. White: What Are The Alternatives" 21 : 1327-, 2008

24 Sandra Day O'Connor, "Reflcetions On Arizona's Judicial Selection Process" 50 : 15-, 2008

25 Carl W. Tobias, "Reconsidering Virgina Judicial Selection" 43 : 37-, 2008

26 Mark S. Cady, "Preserving the Delicate Balance Between Judicial Accountability and Independence" 17 : 343-, 2008

27 G. Barry Anderson, "Preserving The Independence Of The Judiciary" 35 (35): 3-, 2009

28 Mark I. Harrison, "On the Validity and Vitality of Arizona's Judicial Merit Selection System" 34 : 239-, 2007

29 Roy A. Schotland, "New Challenges to States' Judicial Selection" 95 : 1077-, 2007

30 Joanna M. Shepherd, "Money, Politics, And Impartial Justice" 58 : 623-, 2009

31 Herbert M. Kritzer, "Law Is the Mere Continuation of Politics by Different Means: American Judicial Selection in the Twenty-first Century" 56 : 423-, 2007

32 Bert Brandenburg, "Justice In Peril: The Endangered Balance Between Impartial Courts And Judicial Election Campaigns" 21 : 1229-, 2008

33 Lavenski R. Smith, "Judicial Selection: It's More About The Choices Than Who Does The Choosing" 30 : 799-, 2008

34 Judith Resnik, "Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure" 26 : 579-, 2005

35 Tillman J. Finley, "Judicial Selection In Alaska" 20 : 49-, 2003

36 Elizabeth A. Larkin, "Judicial Independence And Popular Democracy" 79 : 65-, 2001

37 Diane S. Sykes, "Independence v. Accountability- Finding A Balance Admist The Changing Politics Of State-Court Judicial Selection" 92 : 341-, 2008

38 James Bopp, Jr, "How Not To Reform Judicial Elections: Davis, White, And The Future Of Judicial Campaign Financing" 86 : 195-, 2008

39 Sandra Schultz Newman, "Historical Overview Of The Judicial Selection Process In The United States" 49 : 1-, 2004

40 Jeffrey D. McMahan, Jr, "Guarding The Guardians: Judge's Rights And Virginia's Judicial Inquiry And Review Commission" 43 : 473-, 2008

41 Brian T. Fitzpatrick, "Errors, Omissions, And The Tennessee Plan" 39 : 85-, 2008

42 Brian T. Fitzpatrick, "Election As Appointment: The Tennessee Plan Reconsidered" 75 : 473-, 2008

43 William E. Walters, "Defending The Judiciary: An Obligation Of Bench And Bar" 37 : 5-, 2008

44 Jeffrey W. Stempel, "Core Fallacies Underlying Election Of The Judiciary" 4 : 35-, 2003

45 David B. Rottman, "Conduct And Its Oversight In Judicial Elections" 21 : 1295-, 2008

46 Raymond J. McKoski, "Charitable Fund-Rasing By Judges: The Give And Take Of The 2007 ABA Model Code Of Judicial Conduct" 2008 : 769-, 2008

47 Jeffrey D. Jackson, "Beyond Quality: First Principles in Judicial Selection and Their Application to a Commission-Based System" 34 : 125-, 2007

48 Damon Cann, "Beyond Accountability and Independence: Judicial Selection and State Court Performance" 90 : 226-, 2007

49 Maria Dakolias, "Attacking Corruption in the Judiciary: A Critical Process in Judicial Reform" 18 : 353-, 2000

50 Albert J. Klumpp, "Arizona Judicial Retention" 45 : 12-, 2008

51 Justin S. Teff, Esq, "An Argument For Merit-Based Appointment To The State Supreme Court" 71 : 475-, 2008

52 Michael R. Dimino, Sr, "Accountability Before The Fact" 22 : 451-, 2008

53 Rebecca Love Kourlis, "A Performance Evaluation Program For The Federal Judiciary" 86 : 7-, 2008

54 Aman McLeod, "A Case Study About The Effect Of Campaign Contributions On Judicial Decision-Making" 85 : 382-, 2008

55 Donald L. Burnett, Jr, "A Cancer on the Republic: The Assault Upon Impartiality of State Courts and the Challenge to Judicial Selection" 34 : 265-, 2007