사법영역에서의 고통과 민주주의의 미숙?

초록

This article examines the theme of “Public Suffering in the Judicial Sphere and the Immaturity of Democracy.” Although judicial power, like all state authority, derives from the people under the principle of popular sovereignty and therefore cannot be regarded as entirely unrelated to democracy, the judiciary has traditionally been more closely associated with the principle of the rule of law. From this perspective, the article argues that public suffering within the judicial sphere arises when the judiciary fails to embody or properly perform the essential nature and functions required of it under a state governed by the rule of law. Accordingly, the study comprehensively analyzes several related issues: the nature of judicial power and judicial independence, the organization of the judiciary, judicial procedures, and procedural fundamental rights in judicial proceedings. When the judiciary deviates from its essential nature, lacks the organizational and procedural structures necessary for the administration of justice, or fails to comply with constitutional procedural rights and principles, judicial decisions inevitably depart from the standards of a fair trial. Such departures may lead to distortions of law, violations of fundamental rights, and ultimately public suffering. The judiciary is entrusted with the responsibility of remedying infringements of citizens’ rights caused by legislative and administrative authorities. However, this study also examines the available remedies when courts fail to fulfill this role because of external or internal pressures, or when judicial power itself actively infringes upon the rights of citizens. In particular, where courts violate judicial procedural fundamental rights—such as the unwritten constitutional right to a legal hearing, the principle of due process, or the right to receive a fair and prompt trial before a judge designated by law—citizens may file a constitutional complaint against a judicial decision (constitutional complaint against judgments) pursuant to Article 68(3) of the Constitutional Court Act. Furthermore, when a judge intentionally misinterprets the law to benefit or disadvantage one of the parties, the judge may be subject to criminal punishment under the newly established offense of distortion of law (Article 123-2 of the Criminal Act). In this regard, two of the three judicial reform statutes recently passed by the National Assembly—the offense of distortion of law and the constitutional complaint against judgments—share a common objective: the protection of citizens’ fundamental rights against judicial misconduct and the alleviation of public suffering caused within the judicial sphere. Under the newly introduced constitutional complaint against judgments, a petition may be filed when a final and binding judgment has infringed fundamental rights by contradicting a decision of the Constitutional Court, by violating constitutionally or statutorily prescribed due process requirements, or by clearly violating the Constitution or statutes in a manner that results in a fundamental-rights infringement {Article 68(3) of the Constitutional Court Act}. Most procedural rights embodied in litigation statutes, including the Civil Procedure Act, the Criminal Procedure Act, the Administrative Litigation Act, and the Constitutional Court Act, represent concrete manifestations of the procedural fundamental rights discussed above. Consequently, violations of these statutory provisions are highly likely to constitute violations of due process or fundamental rights. At the same time, the possibility that constitutional complaints against judgments may function as a de facto fourth-instance review cannot be entirely excluded. It is therefore necessary to distinguish carefully between cases involving genuine violations of specific constitutional law (spezifisches Verfassungsrecht) and those concerning merely the infringement of rights under ordinary law (einfaches Recht). Future jurisprudence must develop clear standards to prevent constitutional complaints from becoming an additional appellate review of ordinary judicial decisions. In this regard, Korean constitutional jurisprudence should continue to draw upon the experience of the German Federal Constitutional Court, where constitutional complaints against judgments have long constituted a central area of constitutional adjudication, as well as the methodological distinction developed in German constitutional scholarship between ordinary adjudication and constitutional review. Although constitutional complaints against judgments may not completely eliminate public suffering arising from judicial proceedings, it is hoped that this mechanism will at least help to wipe away the tears of those who have suffered injustice through judicial decisions and have sought relief through constitutional adjudication.

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