미국법조윤리상 판사의 일방적 의사교환 금지

Ex parte communication means communication with only one party in the absence of the other party, or communication with a third party in the absence of either one or all of the parties to the litigation. In America, the Code of Judicial Conduct strictly prohibits the judge's ex parte communication. For example, American Bar Association's 2007 Model Code of Judicial Conduct Rule 2.9(A) states that a judge shall not, except in certain limited occasions, “initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending proceeding.” American judicial system is built upon the adversary system. The system assumes that truth will be found only when two advocates present their own version of the fact to a neutral and impartial decision-maker. That assumption requires that each party has the opportunity to learn what another party or third person says and to challenge those statements either through cross-examination, opposing testimony, or argument. The judge's ex parte communications seriously hurt the proper functioning of the adversary system. Korea also has legal ethics which expressly prohibit the judge's ex parte communication. For instance, Judge's Ethical Code Article 4(4) provides that “the judge shall not meet or contact the parties or their lawyers at the place outside the court except as required for the purpose of the litigation,” and Guideline On Contact With the Judge adopted by the Supreme Court to implement Judge's Ethical Code lists certain exceptional circumstances in which a judge can engage in ex parte communications without the presence of all parties. However, these Korean legal ethics have the following problems: First, they are too vague to provide meaningful guidance to judges when confronted with specific ethical problems. Second, they do not prohibit a judge's ex parte communication with a third party who has no interest in the outcome of the litigation. Third, more importantly, many Korean people do not seem to understand the importance of the principle of prohibition against the judge's ex parte communication. In order to promote the adversary system Korean judicial system is based upon, Korea needs to modify its current judicial ethics by more specifically describing the circumstances in which a judge can and cannot engage in ex parte communications following ABA's 2007 Model Code of Judicial Conduct.