대법원의 조직과 상고제도의 변화: 역사적 제도주의의 관점에서

Abstract

There has been a continuing discussion over many years on improvement of the final appeal system over many years. However, no consensus on effective alternatives has been reached, thus posing the need for a thorough reexamination on the premises of the discussion. In particular, it is indispensable to delve into the history of the Korean appeal system since the alternative measures currently under discussion have, in fact, already been implemented in its history. To this end, the approach based on historical institutionalism carries several significant implications. Historical institutionalism, as a part of new institutionalism, presupposes the interaction in which institutions affect individuals in historical context and those individuals, in response, affect changes and continuity of such institutions. This approach focuses on distinctions drawn among different countries and eras and analyzes the process of political, economical, and social backgrounds, power structure, and ideologies converging into the existing institutions. The organization of the Korean Supreme Court and the final appeal system are rooted in the Supreme Court during the U.S. military rule, a system influenced by the Japanese occupation and have undergone various changes since the establishment of the Korean government. After the liberation, when the Joseon High Court based on the continental legal system had lingering effects, the integration of the U.S. Department of Justice and Korean legal group led to the partial introduction of the U.S. Supreme Court system which restricts the number of justices to 11. The conflict between the president and judiciary following the establishment of the Korean government resulted in the Supreme Court seeking the limit on the number of high judicial office with the aim of protecting judicial independence. Against such backdrops, the dual system of the Supreme Court, stemming from the Court Organization Act drafted by the Code Drafting Commission in 1947, was implemented in 1959, which can be viewed as the reintroduction of the organizational method from the Joseon High Court. As the military junta came to power in 1961, the dual system was repealed and a legal system analogous to the U.S. Supreme Court was put in place where the number of justices was reduced to 9 and the jurisdiction of the Supreme Court was solely exercised by the en banc court while the High Court dealt with the rest of the final appeal cases. The pressure from the military regime on swift handling of cases then brought about changes aimed at the division of work, including reintroduction of the panels of justices, increase in the number of justices to 12, and adoption of judicial researchers. The newly introduced panel system was operated on the basis of unanimity, allowing the panels to hold the status of complementing the en banc court. In the continuous pursuit of the effective operation of the judiciary, the number of justices increased up to 16 under the influence of political power. In 1980, the extensive discussion held regarding the organization of the Supreme Court and the final appeal system failed to reach a consensus on whether to reintroduce the dual system of the Supreme Court and increase the number of the justices, merely resulting in the creation of the constitutional provision leaving open the possibility. The new military regime, however, decided to rigorously restrict final appeals by implementing the leave to appeal system. The system was eventually abolished in 1990 in the face of criticism after democratization for excessively restricting the civil right to a trial. Following the abolition of the leave to appeal system, a group of lawyers petitioned for the expansion of the Supreme Court in an attempt to increase the total number of the final appeal cases again, The Supreme Court, however, pushed ahead with an alternative system making up for the drawbacks of the leave to appeal system, which gave rise to the legislation of the rejection of appeal to the Supreme Court in 1994. Such a system has been sustained ever since up until 2021. In brief, the Supreme Court restructured based on the principle of a single en banc court in 1962 has been maintained for an extended period of time with the panel system, the judicial researcher system, and the rejection of appeal to the Supreme Court all connected to one another. This unique organization can offer various benefits, allowing the Supreme Court to seek uniformity in legal interpretation through examination by an en banc court and rule important cases in terms of principles and policies while enhancing effectiveness with the operation of panels, and also to pursue immediacy and expertise through expansion, both quantitative and qualitative, of the judicial researcher system introduced after the repeal of the dual system. Furthermore, the rejection of appeal to the Supreme Court, designed to supplement the drawbacks of the leave to appeal system, grants a request from an appellant for substantive examination by the Supreme Court. Therefore, it is crucial to clarify the fundamental purpose in modifying such a system―whether it is either to simply alleviate the increased burden of internal workload or to meet the external demand for judgements with reasons set out― and to set a clear direction for improvement. If the proposed measures under discussion are not proven to prevail over the current system with the complex structure, it will be more practical to maintain the existing system and rather explore ways of effectively revising and complementing it. In the process of making improvements, historical institutionalism will provide its normative significance that in-depth historical assessment on the systems which have already been put in place should be conducted to prevent the repetition of insufficient institutional experiments and failure.