Judge Recusal System in the U.S. and Korea - With a Discussion on How to Reduce Preferential Treatment of Former Judges -

다국어 초록 (Multilingual Abstract)

When the existence of conflict of interest or bias will prevent the judge from rendering fair and just decision, it may become necessary for that judge to recuse himself or herself. However, if the judge refuses to recuse sua sponte or ignores the necessity of recusal, it will be important for an adversely situated party to request a recusal by filing a motion to that effect. The recusal of judges either sua sponte or by motion would be important in guaranteeing the fairness of the judicial rulings by removing the actual or appearance of bias or conflict of interest.
The downside of judge recusal is that some attorneys or parties may try to abuse it as a tactical matter to delay the trial process or simply to replace the presiding judge with the one whom they prefer. Also, a judge’s recusal sua sponte should not result in a situation where a party loses a right to appeal. A practical concern hampering a party’s motion to recuse exists due to the reality that the same judge whose impartiality was challenged will continue to hear and decide the case once the motion is denied.
The U.S. Congress provides the standard for judge recusals which calls for the recusal of a judge when “his impartiality might reasonably be questioned.” This objective standard requires a judge to recuse himself only if there is an appearance of bias let alone the existence of actual bias. But a problem still exists in that the presiding judge is the same judge who makes the final decision as to whether or not his interest was sufficient enough to warrant recusal.
The current appeal process as to the non-recusal decision to the appellate courts would not provide an adequate remedy. It seems that there are two important and effective measures to deal with the issue associated with judge’s denial of recusal requests. First is the creation of independent board/panel which should review the facts and determine the appropriateness of the judge’s decision not to recuse. Second is the requirement that the judge who declines to recuse submit the written opinion to show the reasons not to recuse so that arbitrary and capricious decisions may be verified.
In Korea, the practices have been ‘customarily’ engaged by the former judges who became lawyers by attempting to influence the courts by abusing their previous judgeship or personal relations with the presiding judge. The most effective measure against the attempts to interfere with judicial administration would be to use the judge’s recusal system in the objective and strict way as warranted. If the judge does not recuse sua sponte despite the existence of actual or apparent bias under the objective standard and the party files a motion to recuse, such motions should be heard and decided by an independent board.
Also, the courts should re-assign judges when there is a conflict of interest or a possibility of the attorney’s tempering of judicial administration. And the judges whose impartiality can be reasonably questioned due to the public relationship or private connection with the lawyer in case should freely request the courts to re-assign the case.

참고문헌 (Reference)

1 "형사소송법 제17조, 제18조, 제21조, 제24조"

2 전용모, "창원지법, 형사합의사건 재판부와 변호사 연고 있으면 타 재판부로 재배당" 로이슈

3 김민진, "저 판사는 싫어요’... 국민들 제척·기피 4300건 신청에 법원 3건만 인용" 아시아경제

4 방현덕, "재판부 기피신청 5년간 3천600여건...실제 교체사례는 단 3건" 법률뉴스

5 전수용, "이숨 사기 4년형-집유...‘100억 변호사’ 최유정 로비였나"

6 방현덕, "법원 ‘불공정 판사 바꿔달라’ 기피신청 4천300건중 3건만 수용" 연합뉴스

7 "법관 등의 사무분담 및 사건배당에 관한 예규 14조 10호"

8 "민사소송법 제41조, 제43조, 제46조, 제49조"

9 황재하, "‘전관예우’ 기대하고 변호사 선임하면 재판부 바꾼다" 연합뉴스

10 "https://en.wikipedia.org/wiki/Cheney_v._United_States_District_Court"

11 "http://www.supremecourt.gov/about/justicecaseload.aspx"

12 Andrea Westerfeld, "To Recuse or Not to Recuse?" 40 (40): 2010

13 "Tex. R. Civ. P. 18a(h)"

14 "Sun Oil Co. v. Whitaker, 483 S.W.2d 808, 823-24"

15 Kimberly Jade Norwood, "Shopping for a Venue: The Need for More Limits on Choice" 50 : 267-292, 1996

16 "Rogers v. Bradley, 909 S.W.2d 872, 879"

17 Federal Judicial Center, "Recusal: Analysis of Case Law under 28 U.S.C. §§ 455 & 144, 1"

18 Jeffrey T. Fiut, "Recusal and Recompense: Amending New York Recusal Law in Light of the Judicial Pay Raise Controversy" 57 : 1597-1603, 2009

19 Mason E. Lowe, "Reconsidering Recusals: The Need for Requirements for When Not to Recuse" 59 : 947-953, 2013

20 Adam M. Samaha, "Randomization in Adjudication" 51 : 1-47, 2009

21 J. Robert Brown, "Neutral Assignment of Judges at the Court of Appeals" 78 : 1037-1069, 2000

22 Shawn P. Flaherty, "Liteky v. United States: The Entrenchment of an Extrajudicial Source Factor in the Recusal of Federal Judges Under 28 U.S.C. § 455(a)" 15 : 411-415, 1995

23 "Liteky v. United States, 510 U.S. 540, 550"

24 "Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860 (1988)"

25 "Kemp v. State, 846 S.W.2d 289, 305 (Tex. Crim. App. 1992)"

26 Amanda Frost, "Keeping Up Appearances: A Process-Oriented Approach to Judicial Recusal" 53 : 531-578, 2005

27 Leslie W. Abramson, "Judicial Disqualification under Canon 3 of the Code of Judicial Conduct"

28 "In re Cheney, 334 F.3d 1096, 1098-99 (D.C. Cir. 2003)"

29 "H.R. Rep. No. 93-1453, at 5 (1974), reprinted in 1974 U.S.C.C.A.N. 6351, 6354-55"

30 "Fed. Prac. & Proc. Juris. § 3550, Procedure for Disqualification (3d ed.)"

31 Michael Hasday, "Ending the Reign of Slot Machine Justice" 57 : 291-298, 2000

32 Leslie W. Abramson, "Deciding Recusal Motions: Who Judges the Judges?" 28 : 543-559, 1994

33 "Comer v. Murphy Oil USA, 607 F.3d 1049, 1053-55 (5th Cir. 2010)"

34 "Code of Judicial Conduct Canon 3(c)(1)"

35 "Cheney v. U.S. Dist. Court, 541 U.S. 913 (2004) (No. 03-475), 2004 WL 3741418"

36 Maureen Solomon, "Caseflow Management in the Trial Court" 8 (8): 28-29, 1973

37 "Berger v. U.S. 255 U.S. 22 (1921)"

38 "Act of Dec. 5, 1974, Pub. L. 93-512, § 1, 88 Stat. 1609"

39 "28 U.S.C.A. § 144, § 455"

40 대법원, "2001. 3. 21.자 2001모2 결정"