조선시대 소송에서의 忌避와 回避

Abstract

The main purpose of recusal is to guarantee fairness of the trial. It was possible to file a recusal motion in Joseon Era to ensure fairness in the judicial process. A tendency of recusal of the judge was rampant in mid-16th century, and one of the litigation document, titled “Gyul-song-ip-an(決訟立案)” obviously shows the tendency of the recusal in those days. Defendant Lee Joon brother requested to the provincial governor to oder to the recusal of the judge who was a government official “Gyung-Joo-Bu-yoon(慶州府尹)”, since they could hardly expect the fairness on the trial because of his taking a bribe. The government officer granted an order to recuse, so that the case brought by Yeoju Lee regarding dispute over the ownership of slaves transferred to the other jurisdiction, Heung-hae(興海) to proceed the rest of trial. Yeoju Lee’s Gyul-song-ip-an(決訟立案) present the reality of the recusal. During the course of review defendant’s recusal motion, the judge “Gyung-Joo-Bu-yoon” filed his opinion to explain and defend his examination of the lawsuit till then, and subsequently recused himself. The trial judge deprived the admissibility of evidence submitted by the parties with urging them to prove the litigation requirements. The trial judge’s sincere efforts to guarantee the fairness of the judicial process broke people’s prejudice that governors tended to disesteem the importance of statues and legal principles.