사법개혁 관련 헌법개정 논의 검토: 법원의 조직과 운영에 대한 논의를 중심으로

Abstract

Since 1987, discussions on democratization and reform in all fields of society have led to national projects that remove authoritarian elements that still existed in each field. Discussions on judicial reform were also fundamentally made in response to the demands for the democratization and demolition of authoritarianism. The national demand to resolve the problems of the privileges of former post in judicial field and corruption arising from the closed composition of the judiciary was the driving force behind judicial reform. In line with the trend of globalization, the demands to improve the quality of legal services, expand legal aid, and guarantee civil liberties and human rights by judicial decision also contributed to judicial reform. In order to fundamentally complete these reforms, constitutional changes as well as legislation were required, and these contents were reflected in constitutional revision drafts. Constitutional amendments dealt with the reform of the military court's trial system, public participation in trials, and changes in the way the Chief Justice and Justices of the Supreme Court and judges are elected. In particular, a separate committee was established to disperse the exclusive power of the Chief Justice regarding the appointment of Supreme Court Justices so that judicial independence could be secured. Civil society, which witnessed the problem of the Chief Justice's imperial authority and politicization of judicial power, has shared the awareness of judicial reform and discussed constitutional issues such as independence in judges' status, public participation in judicial and judicial control. Above all, a considerable level of deliberated reform direction should be established through the process of public debate. Since desirable courts realize human rights protection and constitutional values of the people through fair and objective trials, the independence of the judiciary is emphasized as a constitutional principle. However, this is not the only constitutional principle to be observed in the composition and operation of the judiciary, and the court, a democratic constitutional body, should seek to realize the principle of separation of powers and check and balance. Since the court's jurisdiction is granted by sovereigns, it should reflect the will of the people as much as possible and be controlled by them, and accept indirect control by other political powers. Judicial independence can be secured in a way that realizes the democratic accountability of judiciary, such as securing the openness of judge employment, public participation in trials etc. In the era of judicialization of politics, the judiciary should go to trial while considering democratic requests and constitutionalism at the same time, and through this, judicial accountability and independence should be integrated. It is necessary to find an appropriate way to secure the independence of the judiciary and implement accountability in the constitutional revision work on related issues, including the judge employment system. Discussions on judicial reform and constitutional revision should continue in this direction so that the court can establish itself as a bastion of guaranteeing the rights of the people and constitutionalism overcoming the judicial manipulation that shocked the civil society.