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Studies on the Independence and Responsibility of the Judiciary

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2017, 5(1), pp.261-286
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law

JEON ChanHui 1

1서원대학교

Candidate

ABSTRACT

The constitutions of modern democracies are oriented towards liberal democracy and independence of the judiciary is considered as one of the essential components of liberal democracy. It is because independence of the judiciary is the last bastion to protect the rights and freedom of people and human rights in democracy. Article 27 of the current constitution stipulates the right to fair trials in the rules of the right of access to courts. Perhaps this is why independence of the judiciary should be presupposed. In the execution of judicial functions, when judges avoid intervention and direction and hold trials independently and conscientiously by the constitution and law, there can be the belief that judges are exercising judicial power that is given from the people. If people are not given a firm belief in judicial independence, they question the fairness of trials, which is the basis of legitimacy of rulings. It is no exaggeration to say that legitimacy of rulings depends on the trust of people. Therefore, judicial independence is a clear constitutional value that must be guaranteed in a democratic country. However, there can be limitations in courts even if they are made ideal for the protection of freedom and rights of people. Sometimes, courts may disappoint people with erroneous or biased rulings so they should try not to lose the trust of the people. Recently, however, regarding the recent ruling in the appeals trial that found ‘conscientious objectors’ not guilty in since 2004, there has been controversy that the ruling came out of confusion about legislative power. In other words, concerning judges' holding trials mentioning the theory of legislation, there was a doubt about the principle of separation of powers, the responsibility of the judiciary, and state power to be bound by the law. Against this backdrop, this paper demonstrates the significance and importance of the judiciary, the harmony between independence and responsibility of the judiciary, and the fact that national organizations are bound by the law, and it focused on the possibility of resolving a conflict between the positive law and judges’ view of justice by arguing unconstitutionality at the Constitutional Court.

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