사법개혁 - 우리나라와 독일의 최고법원 비교 고찰 -

Abstract

This paper is concerned with the judicial reform, in particular of the Supreme Court as the highest judicial organ of South Korea. The methodology taken in this research is to compare both the institutions and operations of Germany and Korea in an analytical manner. It will be then possible to search for the new possibility of the reform of the Korean Supreme Court. German put into practice the several characteristic institutions that will suggest possible choices of the reform required in Korea. Different from the situation of Korea, Germany divides up the authorities of its highest court in several judicial organs. The Basic Law states that “[it] shall be established the Federal Ordinary Court(Bundesgerichtshof), the Federal Administrative Court, the Federal Fiscal Court, the Federal Labour Court and Federal Social Court.” The distribution of authority of the highest court in Germany is notable in respect of the specialization and realization of the claim to a trial of its nationals as well as from the standpoint of the separation of powers. The German Organization of the Judicature Law stipulates separately that the matter for the constitution of the judical chamber and the distribution of cases of each chamber be the autonomous matter of judges. These questions is regulated as to be decided in the council of representatives of judges in each court(Präsidium). Its decision is of legal binding force. The number of the judges of the Federal highest courts is totalling 320. It serves as a foundation not only for the proper maintenance of the burden of handling pending cases for the judges of the highest courts, but for the successful function as the most specialized organ for the country. In Germany, the head of each highest court can only exercise the power of judicial administration over each federal highest court, but not over lower courts. This means the complete independence or autonomy of judicial administration. The German institutional features surveyed in this paper give a number of points of reference for the Korean judicial reform, whose contributions are much hoped for.