법조일원주의 법관임용방식으로서의 법관선거제도-미국 주(州)법관선거제도의 현황과 문제점을 중심으로-

This article aims to consider the judicial election system of the United States as one remedy for the Korean post-reform—that is called a ‘unitary system of lawyers’--judge selection methods. Before to discuss whether to adopt the unique US-style judicial election system, the author stresses to importance to know about the originality and the history of the system. Considering that previous studies have not focused on the history, characteristics, or advantages and disadvantages of the judicial election system itself, the article first provides intensive historical overview, tracing up to the first adoption of the judicial election in Mississippi in 1832. However, it is only after 1846 when New York amended its constitution to elect the judges on behalf of previous appointment system. It then took only 8 years until other twenty states followed N.Y. to establish the judicial election system for constituting their judiciary. The article also encompasses extensive examination of the current judicial election of the US. In the mean time, the US judicial election system tends to have been changed from a ①’partisan judicial election’ to a ②‘nonpartisan judicial election’ type in order to overcome mortal problems that had been revealed. Since 1940, many states have shifted to a ③‘merit-selection’(or ‘Missouri plan’) system which is a kind of conciliatory way to appoint a judge for the bench plus retention election after her term. The study suggests the most up-to-date data of the states’judicial election system including the ④‘gubernatorial appointment system’ and the ⑤‘legislative election’/‘legislative appointment’not to mention the above three types of judicial election system respectively. Moreover, the author analyzes serious problems that the US judicial election system have revealed throughout the long lasting experiences: (1) corelation between the campaign money contributors and the judicial independence; (2) the problems of obtaining endorsement from political parties; (3)public apathy reperensted by the rate of ‘roll-off’; (4)the susceptibility of the judiciary responding to the public supports or pressures and the influence of the special interest groups; and (5)the management and the control over the judicial election process. The study provides remarkably extensive examples grounded by the cases and examples from a wide variety of states. Finally, the author assumes to introduce the merit-selection type judicial election system in Korea as a remedy based on the unitary system of lawyers which substantial postulations have to be qualified and prepared. The study concludes that it is not a clear-cut controversy whether to adopt a judicial election system or to maintain the existing appointment system in terms of balancing the professionalism, judicial independence, accountability, responsibility, and responsiveness of the judiciary.