개헌과 사법 :대한민국 역대 헌법의 사법조항 분석

Abstract

Since the founding Constitution of 1948, the judiciary provisions in our Constitutions have shown no small changes amid the political turmoils of the newly-born republic. In this article, I traced and examined the political backgrounds and legal references of the judiciary provisions in each Constitution. Through this work, I synthesized our past experiences of constitutional-judicial system building, diagnosed our present problems in the current Constitution, and suggested possible improvements for our future Constitution. Strongly limited by the arguments during the immediate post-liberation period, the changes in the judiciary provisions of our Constitutions were restricted mainly within the range of judges’ appointment and constitutional adjudication. Much more attention was paid to the independence of the judiciary rather than the democratization of judicial power. In formulating the judiciary provisions of our future Constitution, the value of democracy in the judicial branch should be fully recognized. Especially, articles concerning the local self-determination in the judicial sector and the extension of trial by jury should be provided in the Constitution. Besides, some provisions that originated from the Japanese Constitution, as well as such provisions as are obviously erroneous, should be replaced. Also, special consideration for those articles about which the Constitutional Court made important interpretations, should be given.

Since the founding Constitution of 1948, the judiciary provisions in our Constitutions have shown no small changes amid the political turmoils of the newly-born republic. In this article, I traced and examined the political backgrounds and legal references of the judiciary provisions in each Constitution. Through this work, I synthesized our past experiences of constitutional-judicial system building, diagnosed our present problems in the current Constitution, and suggested possible improvements for our future Constitution. Strongly limited by the arguments during the immediate post-liberation period, the changes in the judiciary provisions of our Constitutions were restricted mainly within the range of judges’ appointment and constitutional adjudication. Much more attention was paid to the independence of the judiciary rather than the democratization of judicial power. In formulating the judiciary provisions of our future Constitution, the value of democracy in the judicial branch should be fully recognized. Especially, articles concerning the local self-determination in the judicial sector and the extension of trial by jury should be provided in the Constitution. Besides, some provisions that originated from the Japanese Constitution, as well as such provisions as are obviously erroneous, should be replaced. Also, special consideration for those articles about which the Constitutional Court made important interpretations, should be given.