누구도 자기 사건에서 재판관이 될 수 없다

Proposition 『Nemo iudex in causa sua』 latinized from 『No one can be judge in his own case』 is discussed with respect to the disqualification of judge in the procedural justice. But it is one of the unwritten norms as the most norms start. The proposition in modern sense originates from Dr. Bonham’s Case sentenced by Sir Edward Coke, and is closely related with 「the rule against bias」. The proposition covers the cases not only where a statute provides that the chief of a certain organization or institution can be judge in his management business but also covers the cases where a judge has substantial, especially pecuniary interest in spite of non-party status. The bias of latter, substantial interest cases forms 「the rule against bias」, walking hand in hand with the personal bias, though lacking of pecuniary interest. 「The rule against bias」 and the proposition 「Audi alteram partem」 constitute two axes of 「natural justice」. This is one of the characteristics of English legal system on the procedural justice. In the procedural justice of American legal system, 『due process of law』 is discussed instead of 「natural justice」. The writer tries to sound out the expansibility into the substantial area in light of our political, social reality. 『Nemo iudex』 should not restrict itself simply within the judicial or quasi-judicial judgmental area. The proposition should expand into the necessary area to block carrying out the judicial function by a non-judicial branch or their agencies through the arbitrary construction of the Constitution and/or statutes. This expansion means shifting the applied area from judgmental area to decision-making one. Distorted construction of the Constitution and/or the statutes by one party constituting a backbone of the separation of power, and its urge of accepting its construction to the other parties constituting also the backbones for legitimizing its former execution through utilizing its status power, is impermissible. It is one of the most admonitory examples in decision-making process, and also is a sign of 「attitude of anti-Constitution」 or 「lack of the will to safeguard the Constitution」. In this essay, the writer deals with several disputed expansions. Two of them are especially noteworthy. The notion of 「attitude of anti-Constitution」 or 「lack of the will to safeguard the Constitution」 which constitutes the basis of impeachment decision on President Park, Geun-Hye is another saying of the proposition 『Nemo iudex』. This is the first stressing point in this essay. Factual, legal bases for the requesting and commencing disciplinary action against the Prosecutor General Yoon Seok-Yeol by the Minister of Justice Choo Mi-ae strikingly resemble those of Dr. Bonham’s Case. The Act on Discipline of Prosecutors, regulating basis for the disciplinary action against the General Prosecutor admits the dual role of same person to be requester and at the same time judge. According to Dr. Bonham’s Case, any judgement declared by the person of dual role violates the common right and reason, and is null and void.