“회한과 오욕”의 과거를 바로 잡으려면― 사법부의 과거청산을 위하여 ―

Abstract

Under the authoritarian regime, Korean judiciary did not secure its independence from political dictatorship. As a result, it failed to guarantee the human rights of the people who had been victimized by the power organs. One retiring Chief Justice lamented that his term was filled with “remorse and disgrace.” Even since the 1987 uprising and a series of democratization process, judicial decisions were kept intact. This paper focuses on two points. First, why shall we re-evaluate and right the wrongful trials? Or what kind of solution shall be made for the victims of abuse of powers? Second, how shall we overcome the legal barriers if we face the wrongful past trials? My starting point is that the judiciary has to face its past, and consider the pains caused by the wrongful convictions seriously. I approach its past wrongs with the perspective of restorative justice, instead of retributive justice or even revenge. Healing the victims shall be prime objectives, and national reconciliation and empowering human rights shall be a final goal. Democratization requires that old bad laws shall be cleansed, and old bad judicial decisions shall be corrected. Two legal barriers are worth being considered. First, Korean Criminal Procedure strictly limits the requirement for opening retrial to the cases that new evidence shall be discovered enough to be found not guilty. Second, It is another problem that the statute of limitation already expires when the victims try to make the civil litigation to the state. Restorative justice requires that these two barriers shall be solved by the judicial interpretation or by the new law- making. Judicial initiative is needed because the judiciary shall correct what they did wrong, and because it recover the social trust as the final bulwark of the human rights.