최고법원으로서의 미연방대법원의 운용: 특히 본안심리사건수와 관련된 제도와 경험이 우리나라에 주는 시사점을 중심으로

Abstract

The nature and the number of cases reviewed and decided by a nation's highest court bear direct relevance to the symbolic and practical function of such court in that nation's separation of powers structure and, in a larger context, the nation's constitutional, political and social domain as a whole. Issues pertaining to the size of plenary docket of the nation's highest court should be analyzed first in terms of the court's institutional capacity and of the quality of the work. The crucial question here is whether the court's workload is manageable while the quality of both the process and the outcome of the court's work can be maintained at the highest caliber. More significantly, the nature and the number of cases reviewed and decided by the nation's highest court should be analyzed from the standpoint of whether they suffice for the appropriate degree of symbolic and actual control that the highest court has over the lower courts, for such control signifies the integrity and consistency of the nation's law, judicial behavior and justice administration, and the public's predictability thereto. Public trust in the fairness and legitimacy of the judiciary and the administration of justice in many parts stems from such predictability. Thus, the nature of the cases of the nation's highest court and the size of such court's plenary docket are directly relevant to the question of how the nation's judiciary can administer justice and implement the ultimate constitutional values based upon the trust therein from the embers of the national community, hence, should be studied in this vein. Extensive discussions are currently on the way in South Korea with respect to its Supreme Court's workload and the allocation of human resources thereto. The possibility of letting the South Korean Supreme Court select with discretion the cases it will review and decide and the appropriate size of the Supreme Court's plenary docket have much been discussed, and certain legislations and systems have newly been introduced in order to relieve the massive workload of the Supreme Court, such as the appellate review process performed by the appellate division within the High Courts that sit under the Supreme Court. The experience of the U.S. Supreme Court indicates that, for any conducive discussion upon institutional changes for reaching and maintaining the appropriate number of cases to be reviewed and decided by the nation's highest court, a thorough analysis of the elements and factors both inside and outside the court and the judiciary that affect the nature and the number of cases reaching the nation's highest court, extending from the judicial appointment mechanism and the political and moral values of individual justices to the specific means of filing an appeal to the highest court and the amount of discretion given to the court in selecting the cases to be reviewed on the merit, should precede. Such elements and factors should be analyzed from as various perspectives as possible and practicable to wards the pertinent society as a whole, as well as the law and the legal system therein.