比較 社會․文化的 文脈에서 본 司法積極主義와 司法消極主義 ― 하나의 探索 ―

Abstract

This paper is designed to analyse a contrast of Korean judicial activism and Japanese passivism in cross-socio․cultural contexts. A comparative socio․legal study is not an easy task. Our study is necessarily a very tentative one. In Japan, a policy decision including legislation is made on the basis of consensus that has been built on the related matters. Attainment of a consensus takes a longer time but once it is reached, a breakaway from it is not tolerated since Japan is a society where social harmony is seriously taken. In comparative terms, social harmony and consensus in decision-making are normatively taken also seriously in Korea. In practice, however, social dynamism seems to prevail in Korea. Individual personality and autonomy seem to be more pronounced in Korea than in Japan. Attainment of consensus seems to be much harder in Korea than in Japan. Consensus, even if it is reached in decision-makings, does not seem to be as strongly binding on individuals or groups in Korea as in Japan. Social dynamism results therefrom. Korean and Japanese judges seem to share their respective society's socio-cultural characteristics, which in turn seem to be reflected in their respective judicial activism and passivism dichotomy. Korean judges seem to be slightly more autonomous and independent-minded in the judicial hierarchy and toward the government than Japanese counterparts after all. To a great extent, the institutional difference in judicial review of legislation between Korea and Japan is responsible for the two countries' judicial activism and passivism dichotomy, as combined with the socio․cultural characteristics of social dynamism versus harmony. A constitutional court system seems to provide citizens with a direct, broader and faster assesses to constitutional litigation, including the institution of constitutional complaint, than an American style judicial review system. If Korea adopted an American model, its judicial review probably would have been less active than presently it is. In an American model, it usually takes a longer time to have the constitutionality of legislation judicially reviewed finally by the supreme court, which is also the court of the last resort for civil, criminal, labor, and all other cases. There a constitutional issue is raised incidentally to an ordinary civil, criminal and other litigation. It would be easier for an ordinary court, including the supreme Court, to dispose of its case by relying more on the ground of other law (substantive and/or procedural laws) than on that of constitutional law which is politically sensitive. In judicial review, activism and passivism as such are by no means the same thing as what is good or bad. Activism may indicate social instability, dynamism, and/or progress whereas passivism social stability, stagnation, and/or conservatism, depending on an observer's value preference. It seems to be obvious that Korean activism and Japanese passivism are reflections of the contrasting social characteristics of the two countries in their respective law, society and politics, despite the fact that they share many common things such as the civil law tradition and the East Asian cultural heritages. In turn, it seems to be also obvious that judicial activism is an integral part of the Korean social and political dynamism: it at times restrains oversteps of power and other times brings in changes. Judicial passivism in Japan serves social harmony, political stability (including LDP's long stay in power) and concomitant consensus-based decision-making methods in Japan. It seems clear, however, that this particular characteristics of Japanese society tend to work unfavorably to the social minorities who are left out in the mainstream.