재판에 대한 신뢰 확보를 위한 법관의 제척·기피·회피 제도의 개선- 미국의 부적격제도의 역사적 변천과 그 시사점의 관점에서 -

The rule of law requires a fair trial by independent judges. Public confidence in a fair trial can play the pivotal role where there is a sharp dissension surrounding fundamental values of the society for the rapid changes. For the establishment of public confidence for a fair trial, independence of the Judiciary, impartiality of trial, and integrity of judges are essential elements. Nonetheless, the notion of impartiality is abstract and vague, that is hardly possible to interpret it in predictable ways. Judges, as a human being, cannot avoid a bias blind spot. From this perspective, this article explores the nature of judicial impartiality and attempts to conduct a comparative study on the judicial disqualification system of the United States. The tradition of common law had accorded with a strict rule to disqualify a judge, based on the strong presumption on the integrity of judges. However, the recent trends of legislative amendments and judicial cases regarding disqualification or recusal demonstrate that the grounds of disqualification are expanded for the public confidence in the impartiality of a trial. These trends would suggest substantial implications for our recusal system.