사법개혁안으로서 사법평의회 방안의 위험성과 그 대안

On December 29, 2016, the Korean National Assembly convened the Special Committee for Constitutional Amendment (Chairman Lee Joo-Young) within the National Assembly for the purpose of preparing an amendment bill to the Korean Constitution. The Special Committee has formed an advisory council composed of 53 experts in each field to collect consultation opinions. Thereafter, the Advisory Council held “Constitutional Amendment Debate for the Judiciary Trusted by the People” at the National Assembly to present a Constitutional Amendment Proposal for the Judiciary. And then, the Council submitted “The Advisory Report of the Special Committee for Constitutional Amendment”(hereinafter referred to as the “Advisory Report for Amendment”) on July 24, 2017. The Advisory Report for Amendment, however, contains very unique and radical judicial reforms. A major example is the introduction of the judicial council system. The idea of the judicial council is derived from the purpose of resolving some current judicial reform issues caused by the Supreme Court Chief Justice’s monopoly of the authority of judicial administration. In other words, it is aimed at solving judicial reform issues such as bureaucratization of court organization, ranking system of judges, some privileges for judge’s former post, strengthening internal independence of judges and improving judge’s democratic accountability. The Advisory Report for Amendment contains a plan to establish a new constitutional body called the “Judicial Council”, which shall have all the authority of judicial administration including personnel affairs such as the authority to elect the Supreme Court Justices, to appoint all judges except the Supreme Court Justices, and to discipline every judges. Furthermore, the new Council shall have the rule-making authority. The Report proposes the legitimacy of ‘ensuring the independence of the judiciary’ and ‘democratic control of judges’. There is a point of sympathy in the consciousness of judicial reform issues shown in the above Advisory Report. Under the current judicial system, It is problematic that the Chief Justice of the Supreme Court has the exclusive authority of judicial administration. It is reasonable to argue that this may undermine the internal independence of the judiciary. However, it is difficult to say that the judicial council plan is the right answer to solve the problem. It is rather a worse answer. The plan, which started from the intent of ensuring the internal independence of judges, seem to have been set in a way that fundamentally undermines the independence of the judiciary. In conclusion, the judicial council plan is evaluated as a radical and dangerous experiment that has never been considered in the discussion of judicial reform in Korea over the last few decades, not taking account of the judicial tradition in the Korean constitutional history and the current presidential system. This article argues why the judicial council plan is a radical and dangerous experiment, and when it comes to amending the Constitution, suggests a constitutional alternative to secure the political neutrality of the judiciary and internal independence of the judiciary. To this end, it first elucidate the constituting principle of the judiciary from the viewpoint of two constitutional values of judicial independence and democratic accountability (II). Then, the contents of the judicial council plan are introduced in detail (Ⅲ), and its risks are discussed in four aspects (Ⅳ). Finally, the paper proposes a constitutional alternative to strengthen the independence and accountability of the judiciary (Ⅴ).