사법권독립과 법관의 직무평가

Abstract

In 2008 Seoul Bar Association(SBA) announced to launch a judicial performance evaluation to deter judicial partiality and to protect the lawyer’s rights in advocation. The evaluation was performed based on the survey among the lawyers in Seoul and the results were handed over to the Supreme Court. Although the Supreme Court did not seem to have any interests in or care about the results and several critics doubted the impartiality of evaluation process, the SBA determined to continue the similar judicial evaluation this year. As a first trial the SBA’s evaluation should not be underestimated, but it is also true that the evaluation had many defects, compared with those in the United States. The SBA lacks any firm theoretical basis and practical knowledges needed to perform the full-scale evaluation. This paper tries to bridge the gap between the SBA’s intention and the poor reality by providing theoretical perspective and practical information for the evaluation, which are heavily owed to the materials produced from the US experience of judicial evaluation. Theoretically important is the relationship between judicial independence and judicial accountability. The paper argues that the two ideas are not only compatible but also complementary, by defining the judicial accountability in terms of process-oriented one rather than outcome-oriented and by showing that clearly-defined process-oriented accountability never intrudes the judicial independence and that the pursuit of the) former will result in the improvement of the latter. Then the judicial performance evaluation is posited as one form of judicial accountability. In that sense judicial performance evaluation is one of the ways to protect and enhance the judicial independence. Practically this paper provides a lot of informations concerning the purposes of evaluation, the contents of evaluation, the evaluation committee, collecting data, the dissemination and uses of the evaluation result etc. All these information automatically shows that the SBA’s evaluation had many defects and gives many useful alternatives. Judicial accountability in terms of outcome-orientation is dealt with in the final part. Here this paper argues that judges should not be deterred to independently make decisions despite the unpopularity of the case among the public but that the judicial independence is not the end in itself, which means that it is in any way needed to keep not too wide the gap between the justice of judges(or judiciary) and that of the public. If the gap remains too wide for the public to bear, judicial independence will not be guaranteed any more. Then the interference from the political branches or the public themselves will be justified and required. So we may say, “without judicial accountability, there is no judicial independence!”