상고제도 개선에 관한 관견- 상고법원안을 중심으로 -

Abstract

A Bill(No. 13138) to reform the Court Organization Act, which proposes the establishment of the Final Appeal Court, was proposed on December 19, 2014 for the purpose of the improvement of the final appeal system. A final appeal system is a part of an appeal system of the basic judicial system. A system design for a final appeal in the judicial system must be illustrated on the basis of constitutional understanding of judicial appeal system. Appeals and appeal systems are usually understood in terms of the supervision of inferior decision-makers by superior ones, with a view to providing the values of accuracy, fairness, consistency, and a mechanism for the generation of rules. And they are ususally conceived of in terms of a top-down hierarchy, with appeals functioning as an instrument for superior bodies to correct the decisions of and otherwise to control inferior ones. The hierarchical instances in the judicial system are only the process for the oneness of decisions. So those are understood as a delegation of decision of higher court to lower court. Many countries worldwide have the same problems of an excessive increase of final appeal cases. Almost all the countries adopt the system of restriction on the final appeal cases to reduce the caseloads of judges and the distrust of the public. Korean resolutions to reduce the final appeal cases has been many ways, including the review system of the High Court, the dual system of the Supreme Court judges, the leave-granting system to a final appeal, the deliberation-cutting system. The latter two systems had been sentenced as constitutional by the korean Constitutional Court. How to establish the restriction system of the final appeal cases must be decided according to the constitutional principles on the judicial system and on the restrictions of the constitutional human rights. Additionally, the basic principles of the judicial system in general and of the appeal system itself should be considered for the institutionalization of the appeal system, including the judicial independence, democratic legitimacy, professionality, functional uniformity, effectiveness, accessability, consistency, and the importance of the case, value of the subject-matter etc. The Bill on the Final Appeal Court has many problems : 1) it is based on the misunderstanding on the distinction between a role of policy-making and that of protecting rights by the Supreme Court, 2) it designates the inferior court as means of the restriction of the final appeal cases, 3) Judges of the Court are lacking a democratic legitimacy, 4) The structure of classifying cases needs many personnels, 5) it can undermine the oneness of decision and increase a cost for an appeal system. The overriding way to the reduction of the final appeal cases is to strengthen the fact-finding proceedings in 1st and 2nd instances. This project would be achieved in the medium- and long term plan. Transitional proper way to resolve the problem is the dual system of the Supreme Court judges instead of the Final Appeal Court system.