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 appealsystem would be the best for Korean Legal Society. Especially, an appeal system tothe Korean Supreme Court (hereafter called “KSC”) has been one of the verycontroversial issues in Korea. Since 1994 discontinuance of trials system (hereaftercalled “DT system”) has been newly implemented for a trial of the KSC. In 1994appeal permission system of the KSC(hereafter called “AP System”) was repealedbecause most Koreans want to be heard by the KSC for their own cases as anoriginal right to appeal. However, the DT system is also one of AP systems of theKSC because the KSC would not hear trivial appeals and rule such cases to bedismissed if there is no reasonable ground to appeal to the KSC. In DT system, wedo not just use legal terminology such as “permission”. The KSC shall decidewhether a case could be heard continuously or not within 4 months from themoment the case was filed in the KSC. However, the number of caseloads to theKSC has sharply increased and now almost 40,000 cases are filed to the KSC in2014. Only 14 Justices (Judges of Korean Supreme Court) in the KSC cannot handlesuch huge caseloads in an appropriate way and in a right time. Therefore, we haveto increase the numbers of the Justices gradually as much as that of Germany orFrance (there are over 100 judges in each country). However, the KSC does notwant to increase the numbers of the Justices to maintain authority of the KSC. TheKSC is always beware of the balance with the Korea Constitutional Court andwishes to be a policy making court like US Supreme Court. And now the KSC triesto 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 fortheir own court among appealed cases and she distributes the rest of them to theNAC. However, the NAC could not change their own opinions and it should pass thecases to the KSC if the NAC wants to change the previous opinions of their ownand the KSC. Furthermore, the judgments of the NAC could be appealed to the KSCagain if they are against the constitution, judgments of the past decisions of theKSC and the NAC. Eventually, people could hinge on the last resort with fourthsteps through the decisions of the NAC. The author believes that this NAC systemis not apt for Korean legal environment because Koreans usually want their casesto be heard in the last resort (the KSC) and the NAC system should make Koreanappeal system from 3 steps to 4 steps. It means that we have to put much morejudicial resources onto the appeal cases in the future. The author thinks that firstof all, we should increase the numbers of Justices in the KSC. If not, wealternatively have to make present DT system more reasonable and constitutionaldevices by informing reasons of the discontinuance of trials decisions even thoughit increases burden of the KSC much more. The NAC solution introduced by theKSC could be the worst measure to cope with the present crisis for Korean judicialsociety as its solution will squander judicial resources much more than now and sowill the judicial costs. In this article, the author wanted to clarify why the NACsolution would be the worst measure to handle increasing numbers of appeal casesand complaints with the DT system.