이른바 현관예우(現官禮遇),관선변호(官選辯護) 현상에 대한 법적 고찰 = Legal Review of Advocating Activities of Judges and Public Prosecutors

다국어 초록 (Multilingual Abstract)

This paper reviewed types of advocating activities in which judges and public prosecutors engaged, as revealed in court cases, disciplinary action reports and media reports. This paper also reviewed the problems arising from such activities, the factors which lead to judges and public prosecutors engaging in such activities and proposed the measures to be taken to prevent them in the future. It is difficult to ascertain the frequency with which such activities take place. However, several court cases and disciplinary action reports, including the recently reported sponsor-prosecutor scandal and grandeur-prosecutor scandal show that such activities actually exist. The existence of such activities severely undermines confidence in the judicial system. Illegal case brokers cannot be eliminated without resolving the issues arising from such activities. Thus, we must cope with the problems arising from such activities seriously. Consciousness of a judge or prosecutor involved in such activities is formed by the rules in the code of conduct and other laws and regulations. In order to prevent such activities from taking place, rules must be established so that judges and prosecutors are prohibited from providing legal advice or assistance to any person. Establishment of such rules will eliminate the expectation of persons seeking advocacy from judges and prosecutors against their colleagues responsible for the concerned case. Establishment of such rules will also help judges and prosecutors engage in non-legal social activities without being exposed to the risk of undermining existing social relationships when they refuse to assist their friends and relatives in relation to specific legal cases. In addition, advocating activities of judges and prosecutors must be prohibited irrespective of whether such activities affect another judge or prosecutor`s decision, undermine a fair and impartial conduct of another judge or prosecutor, or exercise improper influence. This is because the existence of advocating activities by a judge or prosecutor in and of itself would create the appearance that a case would not be treated impartially and cause serious damage to public confidence in the judicial system. In addition, the judges receiving such advocacy request from another judge should treat it as an ex parte communication and inform the other party of such request. All these matters should be reflected in the code of judicial conduct and code of conduct of prosecutors. In addition, the code of conduct of lawyers should be amended to harmonize the same with the codes of conduct applicable to judges and prosecutors by including a specific provision prohibiting them from taking advantage of advocating activities of judges and prosecutors and attempting to persuade a judge or prosecutor to violate the applicable code of conduct.