2014년 상고법원 설치 논의에 대한 批判的 省察과 새로운 대법원 제도에 대한 試論的 考察

Abstract

In Korea, it has been extensively debated for such a long time which appeal system would be the best for Korean Legal Society. Especially, an appeal system to the Korean Supreme Court (hereafter called “KSC”) has been one of the very controversial issues in Korea. Since 1994 discontinuance of trials system (hereafter called “DT system”) has been newly implemented for a trial of the KSC. In 1994 appeal permission system of the KSC(hereafter called “AP System”) was repealed because most Koreans want to be heard by the KSC for their own cases as an original right to appeal. However, the DT system is also one of AP systems of the KSC because the KSC would not hear trivial appeals and rule such cases to be dismissed if there is no reasonable ground to appeal to the KSC. In DT system, we do not just use legal terminology such as “permission”. The KSC shall decide whether a case could be heard continuously or not within 4 months from the moment the case was filed in the KSC. However, the number of caseloads to the KSC has sharply increased and now almost 40,000 cases are filed to the KSC in 2014. Only 14 Justices (Judges of Korean Supreme Court) in the KSC cannot handle such huge caseloads in an appropriate way and in a right time. Therefore, we have to increase the numbers of the Justices gradually as much as that of Germany or France (there are over 100 judges in each country). However, the KSC does not want to increase the numbers of the Justices to maintain authority of the KSC. The KSC is always beware of the balance with the Korea Constitutional Court and wishes to be a policy making court like US Supreme Court. And now the KSC tries to make a New Appellate Court (hereafter called “NAC”), which handles most appeal cases instead of the KSC. According to the NAC system, the KSC chooses cases for their own court among appealed cases and she distributes the rest of them to the NAC. However, the NAC could not change their own opinions and it should pass the cases to the KSC if the NAC wants to change the previous opinions of their own and the KSC. Furthermore, the judgments of the NAC could be appealed to the KSC again if they are against the constitution, judgments of the past decisions of the KSC and the NAC. Eventually, people could hinge on the last resort with fourth steps through the decisions of the NAC. The author believes that this NAC system is not apt for Korean legal environment because Koreans usually want their cases to be heard in the last resort (the KSC) and the NAC system should make Korean appeal system from 3 steps to 4 steps. It means that we have to put much more judicial resources onto the appeal cases in the future. The author thinks that first of all, we should increase the numbers of Justices in the KSC. If not, we alternatively have to make present DT system more reasonable and constitutional devices by informing reasons of the discontinuance of trials decisions even though it increases burden of the KSC much more. The NAC solution introduced by the KSC could be the worst measure to cope with the present crisis for Korean judicial society as its solution will squander judicial resources much more than now and so will the judicial costs. In this article, the author wanted to clarify why the NAC solution would be the worst measure to handle increasing numbers of appeal cases and complaints with the DT system.