법관 기피이유의 확대

Abstract

In spite of the dramatic rise in the recent number of recusal cases filed—for instance, approximately a third of judges in Korea have become subject to recusal cases every year since the start of the 21stcentury—the number of acceptance has dropped to a large extent that only five recusal cases have been accepted during the last 15 years. When judging the existence of the cause for recusal (i.e., circumstances where fair trial seems impossible), a judge needs to look into the matter in the perspective of an “ordinary common person among the public having sound common sense” rather than the perspective as a fellow judge. Therefore, as a trial, some courts can start receiving the opinion of a jury made up of ordinary common persons having sound common sense so as to refer to such opinion. The opinion of the jury would notably be more accepting of the recusal claim compared to the opinion of the judges and accordingly, the judgment of the judges should be amended so that the gap between the two is not too far apart from each other. The argument that the power to preside over a litigation case cannot, fundamentally, be the cause for recusal in any way is unreasonable. However, if such power to preside over a litigation case is markedly biased, then it would be reasonable to deem such power as cause for recusal. In a situation where an ordinary common person can easily perceive the bias of a judge, for instance, a situation where a judge having the power to preside over a litigation case dismisses all evidence submitted by one party and accepts all evidence submitted by the other, such power of the judge to preside over the litigation case is likely to be deemed as an acceptable cause for recusal. In order to increase the trust in the judiciary, there is a need to expand the scope of the cause for recusal to the extent set out under the German precedents (e.g., in Germany, a judge riding in the same vehicle with an attorney involved in the relevant litigation case is an acceptable cause for recusal), rather than following the Japanese precedents, which take a far more conservative approach. Summary dismissal is a trial that is carried out by the judge to whom the claim for recusal has been filed and thereby making such judge a party to the very trial he/she is presiding. In light of the fact that the judge’s emotion can come into play in such trial and that the judgment on whether the claim for recusal is made with an explicit purpose to delay the litigation process is likely to differ among judges, it would be reasonable for the judge to dismiss the claim only in the instance where the judge is confident that such summary dismissal is likely to be supported by the majority of ordinary common persons having sound common sense. If the claim for recusal is filed by the same person more than once in one case, then such claim will be deemed as having been made with an explicit purpose to delay the litigation process and thereby be dismissed for that very reason.