사법개혁, 좌절과 실패의 역사 - 사법개혁에 대한 평가와 과제 -

Abstract

This paper aims to describe and evaluate recent experiences of the judicial reform, which have been driven by the requests of the civil society. The Korean people have tried 4 times to reform the judicial system since 1994, most of which have resulted in so tiny achievements. In 1994, when the neo-liberalistic policy orientation had begun to prevail the Kim, Young-Sam government, the Presidential Committee for Globalization(세계화추진위원회) opened ardent debates on judicial reform, esp. on the size of the legal profession and the law school system of American style. The aganda was strongly supported by the newly democratized and activated civil society, esp. by the Minbyun and the PSPD. The next occasion was triggered by some scandals of bribery in lawyers’ society in 1999. Kim, Dae-Jung government established the Presidential Committee on Judicial Reform to soothe the wrath of the people against the judiciary on the one hand, and to make more advanced judicial system which could serve the people’s demands on the other hand. But these two efforts had not been so successful in achieving their seemingly good intents, partly because of the opposition from the lawyer society, and partly because of political passiveness to the reform. The third one of 2003 could get some significant achievements. Roh, Mu-Hyun government’s Committee on Judicial Reform of 2005 had made several agreements with the Korean law society, according to which the most important changes in judicial system such as law school system, jury system, adversarial hearing system in criminal trial and so on, could have been introduced in Korea. The last one changed its playground from the President’s hand to the hands of the National Assembly. The agenda of judicial reform was so much politicalized and dealt with by the politicians of the two major parties. But The Koran politics could hardly make any consequence, as usual. In total, 20 years’ experience of the judicial reform efforts has gotten only marginal achievements. The reasons of such failure were, this paper concludes, as following: ① the agenda was set up according to the liberal conception of the judicial system, not to the progressive or democratic one, ② as a result, the agenda was dominated by the lawyers who have strong advantage in packing their interests with jurisprudential and/or bureaucratic concepts, ③ the politicians including the president could not be free from the pressure of the lawyers, who had the strongest powers and jurisdiction to enforce the laws against any “abusive or corrupt” politicians in this democratized society, who had, in other words, good potential for efficient weapons to control the political and economic society. Such phenomena showed the other aspect of the ‘Juristocracy’—rule of the lawyers: this is the reason why this paper requires another forum for judicial reform: reformation of the judiciary for ‘democratic rule of law’ and/or ‘rule of democratic law’.