ScholarWorks@숙명여자대학교

초록

The Supreme Court of Korea has ruled on the liability of the state for enacting Emergency Measure No. 9 and for the actions of the investigative bodies and judges who applied and enforced it. Since the Supreme Court’s decision, the issue of the state tort liability for the judges’ trials has again become the subject of considerable debate. The Korean Supreme Court has rarely ruled on the state’s liability for the trial conduct of judges, using vague criteria. The standard of “holding a trial for an illegal or improper purpose”, which has been recognized in many cases is too subjective. In addition, most cases, such as auction, criminal, and preservation proceedings, do not involve a “judgment”. Taking into account the nature and specificity of the judiciary, it is necessary to review the rules governing the immunity of judges from trial. To this end, it is necessary to define the “subject matter” of the judicial immunity. This should be limited to judgments which are recognized as having substantial legal force, or decisions which are recognized as having an equivalent effect. It is also necessary to consider when a judge can be held liable for judicial misconduct. These include cases where a judge’s conduct materially violates the constitution or the law; where the judge's conduct constitutes a criminal ‘offense’; where the judge intentionally or grossly exceeds the scope of his or her jurisdiction; or where the judge applies in ‘bad faith’ a law that is highly suspect of being unconstitutional. The above criteria are not perfect. They need to be openly discussed by practitioners and academics in the future. In addition, there should be a system of financial compensation for damage caused by minor errors, misunderstandings, or misjudgments by judges in the course of proceedings.

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