헌법재판소 재판관의 제척·기피·회피

Disqualificagion(Recusal) of a constitutional court justice is essential to secure fairness of judgement and promote trust of the people, even if there are few cases in practice. As the regulation is relatively briefly outlined in the Art. 24 of the Constitutional Court Act, the system should be operated in a desirable way by complementing appropriate interpretations of the provision. In interpreting Art. 24, we should consider distinctive characters of constitutional review distinguished from those of a civil procedure. On the one hand, it should not interfere in the effective functioning of the constitutional review. On the other hand, it should not make recusal too difficult lest ethical responsibility of the Constitutional Court members and public trust be eroded. In this respect, the ‘case’, the very unit of judgement on the causes of recusal is not limited to cases pending in the Consitutional Court. The ‘case’ also includes cases pending in courts other than the Constitutional Court, which offer direct opportunity to initiate the constitutional review. The causes of recusal are general and comprehensive, as specified as “circumstances where impartial judgment is difficult to be expected”. Thus, the circumstances which do not satisfy the cause of ‘disqualification ipso jure’ may satisfy the cause of recusal. However, circumstances which are close to satisfying a cause of ‘disqualification ipso jure’ do not per se serve as a cause of recusal. It must therefore be judged individually on whether such a circumstance hinders a party from expecting a fair judgment. When there exists the evident cause of recusal, a Constitutional Court Justice has a duty to disqualify himself/herself. For a clerical official or a constitutional research officer, the disqualification will not be applied mutatis mutandis.