상고제도 개선 방안

Abstract

The improvement of an appeal system is a task which cannot be deferred any longer. With regard to the dissatisfaction and distrust of the public and persons in legal profession for rejection of final appeal to the Supreme Court, an effective solution should be suggested. Also, from the viewpoint of the Supreme Court, the establishment of a system which plays its proper role and function is urgent. Many countries worldwide including the US, the UK, Germany, France and Japan had the same problem, and all of the countries chose a restriction of appeal system as its solution. There may be a difference as for which court, either a court of appeals or the Supreme Court, is to be a main court which grants leave to appeal, but the reason for granting leave to appeal is substantially the same. All grants leave to appeal only when the issue is a constitutional matter or of a great public importance such as the formation and development of law. Despite this fact, the argument that the system of leave to appeal is unconstitutional because it infringes a right to trial of people is not accepted in these countries. Due to the fact that the political powers not established on democratic legitimacy pushed ahead with a leave to appeal system forcefully without gaining people's support in the past, many people are still hostile to a leave to appeal system, and some argue that it is unconstitutional. However, it does not violate a right to trial which is guaranteed by Article 27 of the Constitution even if a restriction of appeal system is enforced or an appeal is assigned to a higher court of appeals, not the Supreme Court. Rather, it protects people's right to trial more effectively. This is harmonized with a current court tier-system and essential functions and duties of the Supreme Court, and also accords with a judicial development system in the long term, that is, reinforcement of lower courts and making the Supreme Court only deal with a matter of law, through the unification of legal profession and a system of judges for life. The reason for various countries worldwide to choose a measure to control the number of cases come before the highest court, rather than a measure to increase the number of judges at the highest court is samely effective in our country. It is not only the most reasonable, but also the most beneficial to the country, society and people.