법관이 직무를 집행할 수 없게 되었을 경우 기피신청의 이익이 있는지에 관한 연구

The Supreme Court ruled, “If for any reason the judge was unable to carry out his duties in respect of the main case, the motion for recusal would lose its purpose and have no interest in maintaining it.” in 88Ju2 and 92Du25 decision. When the judge who was subject to motion for recusal gets unable to carry out his duties, the existence of standing of the motion is intimately related to the possibility of the remedy of the fault of the litigation in violation of the stay of the proceedings. In the case that the decision to dismiss or reject the motion had been finalized after the judge did acts of procedure during the stay of the proceedings, considering the position of not only the litigant who filed the motion but also other litigants, it is reasonable that the fault is cured only if all the litigants have fully participated in the proceedings. When a judge subject to motion for recusal gets unable to carry out his duties, regardless of the outcome of the trial on the motion, his right to execute has already been excluded. So, in principle, there is no standing of the motion. However, if a judge had committed acts of procedure in violation of Article 48 of the Civil Procedure Act before he became unable to perform his duties, it is necessary to determine whether the defect is cured, So, there is the standing of the motion.