미국연방지방법원 부판사제를 활용한 우리 법관임용시스템의 개선방안

함영주 한국민사소송법학회 2012 民事訴訟 : 韓國民事訴訟法學會誌 Vol.16 No.2

When the Korea law school system was introduced in 2008, the Supreme Court of Korea had a plan to new judge appointing systems. The plan is now expected to shake the foundation of the national judiciary system,in which top scorers of the examination have managed to earn the appointment right after they have completed their twoyear mandatory educational program at the Judicial Research and Training Institute. According to the reform plan submitted to parliament, those with more than three years of experience as prosecutor, lawyer, law professor or others will be able to be hired as a judge in 2013. The career qualification will be tightened to more than five years at such jobs from 2018 to 2019and more than seven years of experience could be hired judges from 2020to 2021. From 2022,only those with more than 10 years of field experiences will be hired as judge. Apart from prerequisites of these field experiences, I would rather try to investigate how to recruit new judges actually and what process is exactly needed. That's because longer years of field experience does not guarantee good judges. For this background, I am trying to investigate U.S. Federal magistrate judge's selection and evaluation system and try to apply the system into Korea judge appointing system. A magistrate judge's appointment is subject to a budget of Korea supreme court by the legislature's allowances. The vacancy is advertised that all the lawyers in the area of the court could have the opportunity to apply for the position. A news release is made to newspapers and broadcasting media in the district. After applications are received, magistrates selection panels determine the competence and experience qualifications which are the most important in selecting a magistrate judge. Standard form of questionnaires are distributed to each lawyer in the area, trying to assess applicant's qualifications. Prior to interviewing any applicants, background checks are made by the court and the results communicated to the court administrator who distributes the information to magistrate panels. Magistrates panels adopt are subject to standards of fairness, equal opportunity, and merit selection. The panel decides the method of voting in advance. The panel interview questions and each applicant should be asked questions so that the magistrate panel could compare the applicant's qualifications. Results of the appraisals are communicated by the magistrate panel through the court administrator to the individual judge. Results of the judicial appraisal remain absolutely confidential. This kind of magistrate judge selection system could also appropriate to get rid of the lawyer's privilege of his/her former judge post and to lower the barrier of justice for the common people.

법조일원화 시대에 걸맞은 바람직한 법관 임용제도

김신유 ( Kim Shinyoo ),박재후 사법정책연구원 2020 연구보고서 Vol.2020 No.9

With the amendment of the Court Organization Act in 2011, South Korea adopted a new judicial selection system that unified the legal profession. Under the new system, judges are selected from practicing lawyers and prosecutors who exhibit professional competence and good character. In the past, judges were appointed directly from the Judicial Research Training Institute (JRTI) immediately after they became qualified to practice law. To implement the new selection system successfully, it is necessary to design appointment procedures to evaluate the applicants’ ability and character in a fair and objective way. It is also necessary to eliminate factors that discourage applicants from applying―and strengthen factors that motivate applicants―to increase the number of judge applicants. This research analyzes many unreleased reports about the judicial appointment system written by the personnel managers at the Supreme Court of Korea in order to check if the competency indicators for the judge applicant evaluation are appropriate and if the qualitative indicators are objective and reasonable. Furthermore, this research identifies the detailed evaluation criteria of the new selection system and discusses the implications of the differences among judicial appointment systems in South Korea, the U.S., the U.K., Germany and Japan through a comparative legal approach. In the process, this research proposes how to improve the new selection system. As to competency indicators, reduction of influence rates of the record at previous examinations such as bar exam or JRTI exams, gradual phase-out of the legal writing skills test, reform of the practical competency-based interview, introduction of interviews based on assessment of practical qualification in the candidate's field of specialization, upgrade of professionality of the committee on document screening process and more systematic and effective reference check are needed. As to qualitative indicators, we recognize that it is required to conduct more objective reference checks. For more systematic and effective reference checks, the role of the Korean Bar Association as a referee has to be strengthened and a lawyer evaluation system regularly led by judges needs to be introduced. For more objective reference checks, South Korea should consider establishing an advisory board for judicial appointments at each district or high court. This research conducts multiple regression analyses using survey data with the help of Mr. Jaehoo Park, a DPhil student in Politics at the University of Oxford, in order to examine whether the decision-making process to apply for the role of judge is affected by certain institutional factors. The analyses show statistically significant results that the decision to apply for the role of judge has: (i) a positive correlation with the expectation of judicial independence and the use of the lawyers’ expertise; and (ii) a negative correlation with the years of the professional experience and the expectation of childcare. The analyses show, however, results including interaction effects that lawyers who set a higher value on the expectation of a steady income at an advanced age and have a longer career at the same time are more likely to apply for the role of judge. Therefore, in order to attract experienced lawyers, the judiciary needs to provide lawyers with more information about judicial independence, increase influence rates of expertise assessment in the candidate's field of specialization, increase the number of specialized courts and specialized judges, improve welfare policy on the childcare system for judges, and introduce a senior judge program. This research has some limitations. Adjusted coefficient of determination (adj. R2) is only 0.44, and there could be intercorrelations or interassociations among the explanatory variables (multicollinearity). In addition, there could be data bias given that this research is based upon a one-time e-mail survey rather than systematic quota sampling or random sampling. Therefore, in follow-up studies, it is required to reduce multicollinearity by eliminating overlapping areas among explanatory variables and increase adj. R2 by adding more explanatory variables affecting judge appointment. Furthermore, it is necessary to accumu late data by conducting elaborate and regular surveys of members of the legal profession, as well as general public on the issues related to the judiciary and laws in order to reduce bias of surveys and to correctly analyze the changing demands of consumers of judicial services. This research can serve as a reference to such follow-up studies.

시니어판사 제도에 관한 연구

모성준 ( Mo Seongjun ),서용성,최유나 사법정책연구원 2018 연구보고서 Vol.2018 No.1

The senior judge program of the United States has played an important role in preventing its judicial system from being overburdened as well as providing high-quality judicial service to the public. Originally aimed at Article III judges with life tenure, the senior judge program has been developed in order to minimize the drawbacks from life-tenure judgeships and to drive the federal judges to retire honorably. It turned out that the program has not only accomplished the purposes it had set out with, but has also enhanced the effectiveness and stability of the courts. Therefore, the senior judge program has been extended later to non-Article III judges, and state court judges throughout the U.S.. At the present time, senior judgeship has been adopted by many countries including Canada, UK, Singapore, Hong Kong SAR and Taiwan. On the other hand, Germany, the Netherlands, Spain and Japan have set up similar programs like part-time judgeships for enhancing the efficiency of the court.  In South Korea, in consequence of the fundamental transformation in judicial selection process, it is highly anticipated that the court will begin to fall short of judges from the near future. In order to mitigate the operational risk resulting from the shortage of judges, senior judge program should be introduced for securing the effectiveness and stability of the courts. Moreover, the senior judgeship could be utilized as a countermeasure against the decade-long criticism on the quality and fairness of the judicial function by enhancing judicial independence and its performance.

미국의 원로법관(Senior Judge)제도에 관한 연구

전우석 ( Woo Suk Jun ) 홍익대학교 법학연구소 2016 홍익법학 Vol.17 No.2

미국의 원로법관제도는 연방법원의 업무 과부하 예방과 이를 통한 양질의 사법 서비스제공에 있어서 핵심적인 역할을 해오고 있다. 이러한 원로법관제는 원래 연방헌법 제3조 근거 종신직 법관들만을 위한 제도였다. 그러던 것이 연방의회 차원에서의 입법을 통하여 비종신직 임기제 법관들인 연방헌법 제4조 근거 법관들과 제1조 근거 법관들의 일부에게로도그 모방적 적용이 확대되었다. 1919년 연방의회에서 원로법관제에 대한 법안을 마련할 당시동 제도가 지니던 주된 목적은 종신직 법관들로 인한 부작용들을 최소화하고, 종신직 법관들의 명예로운 은퇴를 유도하기 위한 것에 있었다. 그런데 이제는 당시의 그러한 주된 입법목적의 달성은 물론 전술된 주요한 순기능들까지 동시에 제공해내고 있는 것이다. 우리나라의 경우 사법 서비스 제고 방안에 대한 본격적 논의가 오랜 기간 지지부진하다. 그런 가운데 우리 법원은 폭발적으로 증가하는 업무량으로 인해 국민에게 양질의 사법 서비스를 제공해주지 못하고 있다. 미국의 원로법관제 도입에 관한 우리 입법부 및 사법부차원에서의 실질적 논의가 이루어져, 국내 도입에 있어서 적실성을 극대화하고, 그 장점또한 최대화할 수 있는 방안이 조속히 마련되어야 할 것이다. The senior judge system of the United States has played an important role in preventing its judicial system from being overburdened and in providing a high-quality judicial service to the public. The system was originally aimed at Article III judges with life tenure. However, a similar application of the system was extended later to Article IV judges and some Article I judges, who are not life-tenured, by the U.S. Congress. The primary purpose of this 1919 Act regarding the senior judge system is to minimize the side effects caused by federal judges with life tenure and to drive them to retire honorably. In present day, the system has not only accomplished the legislative purposes it had set out with, but has also provided the above-mentioned benefits at the same time. The discussion of proposals for improving the judicial service in South Korea has made little to no progress over the course of time. Meanwhile, our court system has not been able to provide high-quality judicial service to the public due to the exponentially increasing caseload. The introduction of the U.S. senior judge system must be discussed substantially at the level of our legislative and judicial branches in order to arrange proposals to optimize the system and to maximize the merits at the time of its introduction as soon as possible.

미연방 원로판사제도의 위헌성에 관한 연구

김명식(Kim Myeong-Sik) 미국헌법학회 2009 美國憲法硏究 Vol.20 No.1

법조계의 전관예우 방지를 위한 법제도 고찰

박언경 ( Park Eon-kyung ) 제주대학교 법과정책연구원 2020 法과 政策 Vol.26 No.2

‘The Former Post Courtesy,’ a kind of privileges of former government officials, unique phenomenon which exists due to the Korean judicial system, is a vice that should be abolished to cause distrust of the people. Although some judges or prosecutors argue no courtesy practice, its existence can be affirmed by awareness of legal specialists as well as public awareness, but also by established institutional preventive measures under the ‘Atorny-At- Law Act’ to prevent the courtesy. In addition, in the personnel hearing of the chief justice candidates of the Supreme Court in 2017, the existence of the courtesy is confirmed in that the candidates mentioned the fundamental eradication of the courtesy practice. The courtesy expands the vice that favors the retired officials of the executive branch and the legislative branch as well as the judicial branch, and can promote the corruption and integrity and unfair business practices of public officials, thereby discriminating the people. It can be extended to problems that violate the rights of equality under the Constitution. The article is to propose institutional improvement to prevent the courtesy practice. The article, firstly, confirmed the existence of the courtesy by introducing the legislative process and the current legislation to prevent the practice. The article, secondly, envisioned the weak points of current legislation and proposed plans to improve the system to prevent the courtesy practice. The plans includes the introduction of life-time judicial system, the registration restriction on ex-official lawyers, the restriction on the ex-official lawyers’accepting cases, and the obligation to submit the resignation data of the ex-official lawyers. It should be recognized that these privileges of former government officials are no longer an abstract problem of law and culture or an unclear tradition of compassionism, but a problem that continues due to institutional limitations. Therefore, legislation need be actively introduced to overcome the current limitations.

해외법창(海外法窓) : 중국의 법관연수제도

전대규 ( Dae Kyu Jeon ) 법조협회 2009 法曹 Vol.58 No.4

중국에서 법관이 연수를 받는 것은 권리이자 의무이다. 중국은 법관연수와 관련하여《법관법》을 비롯해서 <법관연수조례> 등 법률적 근거를 마련하고 있을 정도로 법관연수를 중요시 하고 있다. 중국의 법관연수는 예비법관연수와 재직법관연수가 있다. 예비법관연수는 임용이 예정된 법관을 대상으로 하는 연수이다. 재직법관연수는 현재 재직하고 있는 법관을 대상으로 하는 연수로 보직연수, 승진연수와 직무연수가 있다. 보직연수는 지방 각급 인민법원의 원장 또는 부원장으로 승진 또는 전근하기 전에 실시하는 연수이다. 승진연수는 1급법관이 고급법관으로 승진하기 전에 반드시 받아야 하는 연수이다. 직무연수는 현재 직위의 전문지식을 새롭게 하고 심판업무기능을 향상시키기 위하여 실시하는 연수이다. 중국의 법관연수는 원칙적으로 국가법관학원과 성급 법관연수기관이 담당하고 있다. 그러나 일부 지역에서는 필요에 따라 고급인민법원의 허가를 받아 제3급의 연수기관을 두어 연수를 담당하도록 하고 있다. 중국법관연수는 기본적으로 업무를 떠나 대면교육 형식으로 하고 있으나, 현재는 비용문제나 연수기관의 연수능력문제 등으로 인터넷을 통한 교육을 새롭게 개발하고 있다. 그리고 기본적으로 법관연수의 교수는 "법관이 법관을 교육한다"는 원칙에 따라 현직에 있는 법관 중에서 선발하고 있다. 중국은 법관연수에 대해 많은 연구를 하여 그 개혁의 기본방향을 제시하고 있다. 예비법관연수제도의 개혁, 규범화된 인터넷 연수체계의 확립, 고급인재와 서부지역 법관연수의 강화, 새로운 연수체계(승진 시 연수)의 실시, 연수관리의 강화와 연수권위의 확립, 교수개혁을 중심으로 교육연수기관건설을 강화하는 것이 그것이다.