사법의 민주적 정당성을 제고하는 사법행정조직 개편

This paper explores the direction for judicial reform, a significant challenge in Korean society following incidents of abuse of judicial administrative power. It seeks to harmonize the values of judicial independence and democratic legitimacy, underlining the urge to distinguish the judicial administration from the adjudication itself, the need to reveal the varying demand of democratic legitimacy for the judicial administration, and the plan to revitalize the balance between the Supreme Court Justices Council (SCJC) and the Chief Justice, which has been prescribed in the Constitution throughout its history. First, this paper clearly distinguishes between judicial power and judicial administrative power. Judicial power, primarily the act of judging, requires strong independence from external pressures to realize the rule of law, and its legitimacy is secured through rational legal interpretation and transparent processes. In contrast, judicial administrative power, which establishes the surroundings for trials, is inherently administrative in nature. As it is directly linked to the people's right to access courts, it demands a higher degree of democratic legitimacy. The Constitution grants the SCJC the power to establish rules and regulations, while granting the Chief Justice the power to supervises court officials, which leads to the separation of powers within the Judiciary securing judicial independence from inner and outer pressures. Historically, judicial administrative power in Korea has shifted between the executive and the judiciary branch depending on the political landscape, often being used as a tool for judicial control. While this power became concentrated in the Chief Justice and the National Court Administration (NCA) after democratization, this was more a historical byproduct than an intended design. The current structure, where decision-making and executive functions are consolidated within the single entity of the NCA, is vulnerable to abuse of power and lacks sufficient democratic oversight. As a solution, this paper proposes a functional separation within the judicial administration organization. First, the Chief Justice and the NCA should be reformed to exclusively handle executive functions, with the participation of judges principally excluded to protect judicial independence. Second, the SCJC should be revitalized as the effective, primary decision-making body. Third, to secure democratic legitimacy for the revitalized SCJC, multi-layered committees including external members should be established. These would include independent committees within the Judicial Policy Advisory Committee for significant matters like budgets and legislative proposals, and sub-committees to support the deliberations of the Justices Council. In conclusion, this paper contends that by separating the decision-making and executive functions of judicial administration and ensuring external participation in the decision-making process, it is possible to reorganize the judicial administration system to enhance democratic legitimacy without undermining judicial independence.