재판지연에 대한 국가책임에 관한 연구* - 기본법상 적절한 기간 내에 재판을 받을 권리의 보장을 위한 독일 입법례와 그에 대한 평가를 중심으로 -

The European Court of Human Rights (ECtHR) has ruled that delays in judicial proceedings may infringe upon the right to a fair and speedy trial (Article 6(1) of the European Convention on Human Rights) and the right to an effective remedy (Article 13 of the Convention). To prevent such violations, the Court requires individual member states to establish effective remedial procedures for addressing judicial delays. The effectiveness of these remedial procedures is evaluated based on a combination of preventive measures, which aim to prevent delays before they occur, and compensatory measures, which provide redress for delays that have already occurred. Germany’s Act on Legal Protection Against Excessive Length of Court Proceedings and Criminal Investigations reflects these guidelines set forth by the ECtHR. The Act combines strong compensatory measures with weak preventive measures. Specifically, the law introduces robust compensatory measures by recognizing the state’s no-fault liability for non-material damages caused by judicial delays. On the other hand, the preventive measures are limited to indirect and ancillary effects, such as the procedure for filing a motion to expedite proceedings (Verzögerungsrüge). While the German Act demonstrates effectiveness in addressing judicial delays, it falls short of achieving the highest level of effectiveness due to the absence of strong preventive measures. Nevertheless, the German legislature’s efforts to address the issue of judicial delays within the given legislative realities provide a valuable reference for other countries. In South Korea, although Article 27(3) of the Constitution explicitly guarantees the right to a speedy trial, effective remedial procedures for judicial delays remain insufficient. Given this reality, the legislature bears the responsibility to establish effective procedures to ensure timely trials. By referencing the ECtHR’s legislative guidelines and Germany’s legislative example, South Korea should design a remedial framework tailored to its legal and institutional context to prevent judicial delays and provide effective remedies for violations of the right to a speedy trial. This approach will not only safeguard constitutional rights but also enhance public trust in the judicial system.