법관의 부동성(不動性) 원칙과 공판중심주의

Abstract

Under the Korean Supreme Court Personnel Order, a regular transfer of judges to different jurisdictions is effected at preset terms. This practice is highly unusual and although the practice was undoubtedly a measure in securing a more sound legal system, troubling side effects have occurred. Two prominent examples include the undermining of the right of a citizen's right to a speedy trial and a weakening of the public trial principle. Changing judges during a trial is akin to changing an umpire during a sporting event. The practice is not only inefficient but places an unfair burden on the parties to reestablish their case anew before a new judge. This is an example of why most countries ensure the principle of judge immobility wherein judges are not moved to new jurisdictions nor promoted without consent. The public trial base principle maintains that a judge's decision in rendering a guilty or not guilty verdict should be formed mainly in the open courts. This principle includes the principle of direct evidence investigation, concentration of trial procedure, and public trials among others. In the past, Korea criminal procedure had depended largely on the principle of protocol trials, wherein a decision was largely based on the investigating agent's protocols. In an effort to correct the possible biased nature of the practice, the public trial base principle has hence been increasingly emphasized. When there is a change in the presiding judge, it is extremely difficult to ascertain the reasoning formed through the former trial procedure in rendering a guilty or not guilty decision. Even if the evidence is reinvestigated according to the renewal procedure of the trial, there are limits to what can clearly be reestablished. As a result, frequent changes in the trial bench are tantamount to practically undermining the public trial base principle. To ensure a citizen's right to a fair and speedy trial and successfully establish the public trial base principle, the principle of judge immobility must be guaranteed. This should be effected not merely as a judicial personnel policy but as a principle in securing the constitutional right of the victim as well as the defendant and in keeping with due process. There are two options to introduce the principle of judge immobility: a comprehensive approach or a gradual introduction. Should the latter be adopted, it should first be introduced at the district court level. Further, in facilitating the preliminary trail procedure and the public trial base principle, the introduction of a vice-judge appointing system would be highly beneficial. There has been an increasing delay in the trial procedure of major trials. It is high time to guarantee the principle of immobility of judges to ensure the right of citizens to receive fair and speedy trials and to further solidify the public trial base principle in our legal systems.