사법부의 물적 독립 - 예산안편성권과 관련하여

The effective functioning of the judiciary depends in a large measure upon the human and material resources of finances made available to it. In all systems in the world, these financial or material resources are provided by the legislature, either directly or indirectly through the executive government. The dependence of the judiciary on outside sources for the wherewithal to perform its functions must always pose some threat to the independent and impartial administration of justice. In korean constitutional history, there were many experiences of the interferences in the administration of justice through the Budget control to the judiciary. The budget of the judiciary shall be prepared by the competent authority in collaboration with the judiciary. The judiciary shall submit their estimate of the budget requirements to the appropriate authority regardless of the changes or characters of governmental and parliamentary powers. Theoretically, the financial independence of the judiciary can be justified by three aspects ; the position of the judiciary as a genuine third powerholder, the equilibrium of the means of checks and balances, and the autonomy of the judicial policies. There are three types of allocating budget to the judiciary ; 1) In the American system, the court or the court system is responsible for its own budget. 2) In the Westminster(English) system, the executive government provided the human and material resources needed by the court with money voted by the legislature. 3) The third type is mixed one of these two systems(Japanese type). Today, the autonomy of the budget of the judiciary is approved in international level. There are some drafts and declarations which provide it an essential condition of judicial independence. In the current Korean Constitution, only the executive can formulate the national budget bill. The constitutional convention could be allowed without the constitutional amendment for the autonomy of the judicial budget. But it is the best way to amend the constitutional provisions on the budget formulation. As another way of the achievement of the autonomy of judicial budget, it is necessary to change the current statute on the National Finance Act in order to submit to the executive the estimated expenditures and proposed appropriations for the judicial branch without change. The legislature and the executive must resist any temptations to use the power of the purse to influence judicial decision-making, either directly or by seeking to influence judicial policy, and judges must be resolute in resisting any temptation to endeavour to please the legislature or the executive government in the hope of obtaining more favourable treatment in relation to money or resources.