재판의 진행·판단에서 법관의 정서에 관하여

This article first surveys theories that identify the role of a judge’s emotion during trial and judicial decision-making processes; through specific case studies, this study then aims to investigate the mechanism as to how certain emotions are evoked and processed by the judge. Emotion is constituted by the following three—cognition/ decision, action/impulse, sense/feeling—each of which will be discussed along with recent studies in psychology that show how all three are closely interrelated. This article especially focuses on the scientific discovery that emotion is biologically based—when a certain portion of the human brain that governs emotion gets damaged, the patient loses the capacity to make decisions, while he is still capable of cognition. “Judicial dispassion” was traditionally treated as a seminal virtue in Western jurisprudence, but a number of scholars, in recent years, recognized emotion as one that plays a significant function in judicial decision-making. Drawing on recent legal scholarship done on Law and Emotion, this article participates in this contemporary movement that acknowledges and explores the potentially powerful aspects of judicial emotion. Among 12 different factors that can influence the process of trial is emotion experienced by the judge, one that is constituted by four basic kinds—anger, fear, disgust, and empathy. Anger and disgust stem from a sense of contempt against injustices, which then prompt intuitive thinking that invariably tends towards criminal sentencing; fear and sympathy, on the other hand, raise solicitous concern over misjudgment, moving the judge to practice analytical thinking—one that often reaches a more compassionate verdict. It is made clear that these four kinds of emotion govern significantly the process of judging: not only of judging guilty or not guilty, but also sentencing, liability for compensation, and relevance of evidence. Yet, a judge does not always fully recognize emotion’s zone of influence in one’s decision-making. Endorsing the fact that judicial emotion is inevitable can become a way to envision more faithfully the role model of judge inscribed in our constitutional law, and attain consensus of the public in matters of law. In response to another movement in legal scholarship that argues for adopting algorithmic processes in trial, in-depth research in judicial selection, training, and appointment, as well as judicial decision-making processes, are altogether strongly encouraged.