미국 법관윤리장전(모델) 연구(Ⅱ) = 전문 및 Canon 1을 중심으로

다국어 초록 (Multilingual Abstract)

The american Model Code of Judicial Conduct, adopted first in 1924 and significantly revised in 1972, 1990 and 2003, is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through disciplinary agencies.
The Code requires judges, in their professional and personal lives, to adhere to a high ethical standard that evokes public confidence in the integrity and impartiality of the judiciary. It would not be applied in a manner that impinges on judicial independence, nor should it be utilized in an effort to gain a mere tactical advantage in a proceeding.
The Code is not intended as an exhaustive guide for the conduct of judges, but to state basic standards to govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.
The Preamble stresses that the overall purpose of the Code of Judicial Conduct is to provide guidance for judges regarding permissible and impermissible behavior. The 1990 Model Code primarily uses the word 'shall' to express a mandatory obligation and 'should' to express a desirable though not mandatory standard of conduct. The intent of the 1990 Code has been to make explicit, which ethical standards are binding and which are hortatory.
The Preamble to the Code underscores the importance of an independent and impartial judiciary. Judicial independence is necessary to insure public confidence in the fairness of judicial decisions. To insure that judges remain independent intheir decision-making, the Preamble provides that, although a violation of the Code's ethical standards may be the judicial discipline, it is not a separate basis for civil or criminal liability.
Canon 1 of the Code was provided first in the 1972 Code and remained unchanged in the 1990 Code. In August 2003, the ABA adopted an amendment to the Commentary to Canon 1 that defined the concepts of 'a judiciary of integrity' and 'an independent judiciary'.
As the Code's Preamble clarifies, use of the word 'shall' suggests that this rule is imperative rather than merely hortatory. Nevertheless, a few jurisdictions have chosen not to use Canon 1 as a basis of discipline at all. In most instances wherein Canon 1 is cited as a basis for imposing discipline, other Canons are also cited.
The Code's Preamble states that 'The role of the judiciary is central to American concepts of justice and the rule of law ...'. Canon 1 embodies this idea. These ideals are also reflected in the case law.
Canon 1 imposes an obligation upon judges to participate in establishing, maintaining and enforcing high standards of conduct.
Judges are sworn to uphold and apply the law in their official capacity as judges. Judges have been disciplined under Canon 1 for behaving disrespectfully while on the bench. Judges have also been sanctioned under Canon 1 for disrespectful conduct toward individuals appearing in their courtroom.
Courts considering the relative significance of off-bench vs. on-bench misconduct of judges have generally found that official misconduct is more significant. Nonetheless, a wide variety of off-bench conduct has been found sanctionable under Canon 1.
The Commentary to Canon 1 describes a judiciary of integrity as one characterized by judges known for their probity, fairness, honesty, uprightness and soundness of character. A lack of these attributes has often resulted in discipline for judges under Canon 1.
A number of recent cases have focused on the First Amendment concerns related to judicial activity. This First Amendment concerns regarding judicial speech are not limited to a judge's campaign speech.
There is the issue of whether a judge's legal error rises to the level of sanctionable conduct under Canon 1 and other provisions of the Code. Negligence and ignorance of the law, and judge's incompetence are sufficient for judge t