사법의 책무와 독립성을 조화시키기 위한 실천적 과제 제안 : 사법행정 제도개혁을 중심으로

In view of the fact that the Constitution of the Republic of Korea places members of the judiciary as appointees rather than elected ones, while granting the judiciary the duty of protecting the basic rights of the people and the authority to interpret norms through trials, the role of the judiciary under the Constitution of the Republic of Korea is to correct errors of democracy that are liable to depend on the principle of majority, to ensure plurality, protect minorities, and to realize the principle of freedom and equality of social members. This level of democratic legitimacy in the judiciary should be assessed not on whether a member is an elected person, but on whether the judiciary faithfully realizes the role given under the Constitution. In order for the judiciary to correct the errors of democracy from a constitutional perspective and realize practical rule of law, it is preferable to allow direct intervention by the majority-led administration and legislature, rather than to realize real judicial independence, diversification of judicial structure and check supervision of judicial power in civil society. In this regard, the independence of the judiciary and the democratic legitimacy of the judiciary will be established not as confrontational but as complementary. Meanwhile, our current judicial administration has features such as 1st judicial administrative structure and judicial officialization, 2nd judicial administrative officer's equality of positions with judicial administrative executive, and the absence of 3rd judicial responsibility enhancement measures. The above characteristics of judicial administration are caused by personnel rights that enable the chief justice to control judges, and these characteristics also affect the judicial action. If the chief justice's control over judges is strengthened and the independence of trials is weakened due to judicial officialization, independence of the judiciary is also liable to be shaken. The above issues are identified, and what institutional reforms are needed to ensure that judicial administration seeks practical independence from justice and thus achieves judicial responsibilities are also examined.