해방기(1945-1948) 헌법초안의 사법조항 분석－좌파, 우파, 중간파 및 미 군정청 헌법초안을 중심으로－

Abstract

What was the type of judicial system that we, the people of Korea actually wanted in the immediate post-liberation period? To answer this question, I analyzed the ju- diciary provisions of various “Draft Constitutions” during 1946—1947. In the judi- ciary provisions of the left-wing Draft Constitution, Joseonminjugonghwaguk Imsi- yakbeop(Provisional Draft of the Constitution of the Korean Democratic Republic), and the left-wing reply to the US-USSR Joint Commission, it is noted that the judges shall be “elected” and the jury system shall be adopted. Following the example of the Soviet Constitution, it is provided that the independent prosecutors’ office shall have extensive powers and shall be parallel to the court. On the contrary to this, in the judiciary provisions of the right-wing Draft Constitution, Hanguk Heonbeop (The Constitution of Korea), and the right-wing reply to the US-USSR Joint Commission, it is noted that the judges shall be “nominated” and the adoption of the jury system shall be postponed. Modelled after Western judicial system, it is provided that the independence of the courts and the judges, including judges’ lifetime appointments, shall be guaranteed. In the judiciary provisions of the moderate-wing Draft Constitutions, repre- sented by Daehanminguk Imsiheonbeop(Provisional Constitution of the Republic of Korea) and Joseon Imsiyakheon(Provisional Draft of the Constitution of Korea), as well as in the moderate-wing reply to the US-USSR Joint Commission, it is noted that the tenure of the judges shall be ten years and the appointment of the supreme court justices, who have the power of judicial constitutionality review, shall be con- troled indirectly by the congress or directly by the citizens. As in the left-wing ju- diciary provisions, it is also provided that the jury system shall be adopted. In the judiciary provisions of Emery J. Woodall’s Draft Constitution(The Constitution of Korea) prepared by the US Army Military Government in Korea(USAMGIK) and Draft Con- stitutions prepared by the US delegation to the US-USSR Joint Commission(The Proposed Charter of the Provisional Korean Democratic Government[A⋅B⋅C]), it is noted that the judges, unlike in the left-wing judiciary provisions, shall not be elected and they, unlike in the right-wing judiciary provisions, shall not enjoy lifetime appointments.