해외의 퇴직법관 전관예우 규제사례와 한국에의 시사점

Judges returning to legal practice after leaving the bench has caused doubts about the impartiality and fairness of the judiciary in many countries. Many jurisdictions have different regulations to address this problem. In England and Wales, former judges returning to practice is completely prohibited through the uncodified convention, which is reflected in the terms and conditions of judicial office appointment. Between 2004 and 2006, the Lord Chancellor proposed removing the prohibition in order to increase diversity in the judiciary. The proposal, however, was withdrawn due to strong opposition from judges concerned about weakening the status of the judiciary and judicial independence. The Model Code of Conduct by the Federation of Law Societies of Canada, prohibits a former judge from appearing before the court of which he/she was a member or before any courts of inferior jurisdiction to that court for three years. At the end of 2018, the Federation of Law Societies of Canada proposed to permanently prohibit all former judges from appearing before or communicating with any court in Canada. The current regulation on former judges returning to practice in Korea, namely a one-year cooling-off period is weak compared to many countries in terms of its duration and scope of regional limitation. If a decision is made to strengthen regulations, the following steps outline some effective options. First, prohibiting the highest level of judges such as Supreme Court Justices and Justices of the Constitutional Court from returning to practice after retirement may be considered. Second, the existing one-year cooling-off period should be extended to the range of two to six years, and representation should also be banned not only in the final court where they served but also in all courts where they served for five to seven years before their retirement. Third, it is necessary to expand the re-allocation system based on the relationship between sitting judges and attorneys, which functions instead of the recusal and disqualification system that have become a dead letter. Fourth, the regulation on abnormal advocacy, such as ex parte telephone communication or communication outside a court hearing, which are relatively easy to be used by judges-turned-lawyers, should be introduced. Fifth, by ensuring access to information on the relationship between judges-turned-lawyers and sitting judges in specific cases, the other party, the public or civil society, and the judicial administration can carefully monitor the activities of judges-turned-lawyers.