대법원 및 헌법재판소 구성의 헌법적 문제점과 개선방안

This study addresses "what the nature of the problems" arising in the composition of the Supreme Court and the Constitutional Court is, and "what measures are needed for their improvement." Under our Constitution, the Supreme Court and the Constitutional Court are the two pillars of the judiciary, and they are charged with the judiciary in accordance with their law-making function. Therefore, it is self-evident that the composition of the judiciary, specifically the composition of Supreme Court and Constitutional Court Justices, is closely linked to the issue of separation of powers. In other words, this issue requires an approach that addresses how to ensure judicial neutrality from political power. While grounded in the composition of Supreme Court and Constitutional Court Justices, this question carries forward-looking implications for the separation of powers. To find an answer, this study first approaches the issue from the perspective of the tension between "politicization of the judiciary and politicization of the judiciary," which poses challenges to the composition of Supreme Court and Constitutional Court Justices. Next, this study attempted to find an optimal balance in the appointment and composition of Supreme Court Justices and Constitutional Court Justices, which lie at the intersection of "democratic legitimacy and judicial independence." The appointment and composition of Supreme Court Justices and Constitutional Court Justices is a sharp constitutional issue that demands a balance between the inherently tense relationship between "democratic legitimacy" and "judicial independence." Therefore, it is important to note that the issue is not simply limited to the appointment and composition of high-ranking public officials. To this end, Chapter 2 examines the relationship between democratic legitimacy and judicial legitimacy, which underlie the appointment and composition of judges. It theoretically examines the factors that strengthen each legitimacy and the resulting outcomes. Chapter 3 examines the structure of the appointment and composition of Supreme Court Justices and Constitutional Court Justices, which lie at the intersection of democratic legitimacy and judicial legitimacy, and identifies the resulting problems. These issues continue to pose challenges under the current constitutional system. To find a balance, Chapter 4 examines how Germany achieves a balance between judicial and political power and examines its core principles. Chapter 5 examines specific requirements applicable to Korea. The results of this study demonstrate that the appointment and composition of Supreme Court and Constitutional Court Justices can prevent the potential politicization of the judiciary and its subsequent repercussions. Furthermore, it identifies a balance point that can promote judicial neutrality by suppressing the potential politicization of the judiciary, a potential downside of the "politicization of the judiciary." This balance point contributes to establishing a foundation for strengthening the separation of powers.