사법부 개혁의 올바른 방향

• 영문명: Reformation of The Judicature
• 발행기관: 한국헌법학회
• 저자명: 김승환(Kim Seung-Hwan)
• 간행물 정보: 『헌법학연구』憲法學硏究 第10卷 第4號, 9~43쪽, 전체 35쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.12.01

영문 초록

So many years have passed since the reform of the judiciary branch became a demand of the times. The direction of the reform of it is that the judiciary branch which is entirely closed and is full of elite sentiment is enforced to become the power for the people. We have to reinforce the democratic legitimation of the judiciary branch by opening the people as a sovereign the way to participate subjectively in the judiciary. Now we should not admit the attempt to protect the judiciary branch isolated from the people by sticking to the literal interpretation of the provisions of the constitutional law or the laws(e. g. the Court Organization Act) regarding the judiciary power. The judiciary branch is the agency to protect the fundamental rights of the people. So the people must be able to access easily to the judiciary power. Whatever(e. g. the right to counsel) makes the judicial accessability of the people difficult has to be reformed for the benefit of the people. The judiciary perfectionism, which thinks the judge has such an omnipotent ability in the judgment of the things or the legal judgment that he or she doesn't need anyone else's help, is only a kind of creating a myth which is far from the judiciary practices. The judge could declare a right decision about a case first when he or she equips himself or herself with the professional ability and receives the help from the other experts. The Independence of the judiciary branch consists of the internal and external ones. But it is astonishing that the judiciary branch itself has been maintaining for a long time the system and the malpractice which infringe the internal independence. The unconstitutional situation which the core of the judiciary power is ignored has been taking place without any control. When the provision of the constitutional law which regards every judge as a constitutional organ can be applied strictly, the judiciary branch could be situated as what it ought to be.

목차

Ⅰ. 들어가며

Ⅱ. 사법부의 민주적 정당성의 강화

Ⅲ. 기본권 보장을 위한 사법권의 재편

Ⅳ. 전문성 강화를 위한 사법부의 재편

Ⅵ. 맺으며

Abstract