법관의 책무론에 대한 기초법적 고찰

Abstract

This study attempts a foundational legal examination of the roles and accountabilities of judges in a democratic constitutional state. The discussion unfolds around three key markers that constitute the theory of judicial accountability: judicial discretion, judicial fiduciary, and judicial emotion. First, it begins with the premise that demands for accountability arise in areas where judges exercise discretionary judgment. Through an examination of Hart's legal positivism, it reveals that judicial discretion inevitably operates at points where legal indeterminacy and gaps exist, requiring judges to demonstrate judicial virtues and accountabilities such as impartiality, equity, and rational justification. Second, it introduces the 'judge-as-fiduciary model,' which extends fiduciary theory from private law to the public law domain. This model positions judges as public fiduciaries and citizens as beneficiaries, suggesting that judicial accountability can be established based on relationality and dialogicality with citizens as beneficiaries. The duties of loyalty, care, and disclosure derived from fiduciary relationships mean that judges must exercise judicial authority for the benefit of citizens, apply reasonable care, and transparently disclose the grounds for their decisions. Particularly, the duty of deliberative engagement emphasizes that judges should perform communicative judgments that reflect legislative intent and public values with a dialogical attitude. Furthermore, drawing on research findings in law and emotion, it proposes judges' emotional regulation capabilities beyond judicial dispassion as a judicial accountability. While emotions were recognized as irrational elements to be excluded in modern legal tradition, contemporary law and emotion research reveals that emotions can perform positive roles as cognitive tools for value judgment. Judicial emotions constitute essential epistemic resources for grasping complex facts and establishing the direction of judgment. Therefore, appropriate regulation and management of emotions, rather than their exclusion, is required as a modern judicial competence, which connects to judges' communicative accountability. Particularly in criminal courts, judges' emotional regulation capabilities hold significant meaning in contexts such as sentencing decisions, victim impact statements, and therapeutic jurisprudence. Although the three markers presented in this study are based on discussions primarily developed in the Anglo-American common law system, they possess theoretical and practical significance even at the preliminary stage of conceptualizing judicial accountability theory in Korea's democratic constitutional order. This discussion repositions judges not merely as law appliers but as active agents exercising discretion, public fiduciaries maintaining trust relationships with citizens, and communicative actors who regulate and manage emotions. It particularly provides a foundation for understanding the roles and accountabilities of criminal judges more comprehensively, establishing a theoretical basis for further deepening and expansion toward a theory of criminal judicial accountability in the future.