미국 법관행위규범의 부적절한 외관(Appearance of Impropriety) 창출 금지규정 및 사례 분석

Most codes of judicial conduct in the United States lay stress on the appearance, and explicitly prohibit a judge’s conduct if there is a significant possibility that the appearance created by the conduct might impair the fairness and impartiality of the trial―such as ex parte communication and disqualification. This is because the appearance created by the conduct might raise doubts about the integrity of a judge although the conduct might be irrelevant to the integrity of a judge in reality. Likewise, the appearance of justice is inseparable from justice itself. Furthermore, federal and a number of states’ judiciaries have adopted a comprehensive rule―Rule 1.2 of the Model Code of Judicial Conduct adopted by the American Bar Association―that prohibits even creating the appearance of impropriety, i.e., the conduct that might appear to compromise the independence, integrity, and impartiality of a judge for the sole purpose of promoting public confidence in the judiciary. The rule might be considered somewhat equivocal since it is cast in general terms due to difficulties in listing all such conduct. Yet, advisory opinions, disciplinary decisions, and related judgments based on the rule have been accumulated over the past several decades, specifying categories of prohibited conduct so as to supplement the imperfections of the rule. On the other hand, in Korea, the understanding of the importance of the appearance created by judges is relatively limited compared to the United States, and the rule governing the appearance of impropriety is not well introduced. In this regard, this paper will analyze not only the rule prohibiting the creation of the appearance of impropriety but also related cases, and then make suggestions to improve judicial ethics and strengthen the public confidence in the judiciary in Korea.