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Dynastic revolution needed for judiciary

Posted April. 18, 2014 00:53,   


Mencius argued a dynastic revolution about 2,300 years ago by saying that “the people are more important than a state or a monarch,” and that “if a king puts a state at risk, the king should be changed.” Jeong Do-jeon, a politician of the early Joseon dynasty, put this theory into practice about 600 years ago by bringing about a revolution that valued the people more that the nation (Goryeo dynasty) and establishing Joseon dynasty.

Even in the monarchy, people were the basis of a state. In democratic Korea, the constitution states that “the sovereignty of the Republic of Korea shall reside in the people and all state authority shall emanate from the people.” However, it is unfortunate that the judiciary’s commitment to serving the people has weakened.

Judges exercise enormous power that can determine individuals’ life, wealth and freedom by making rulings. Sometimes, they make a ruling that affect the whole society and nation. Nevertheless, they are rarely held responsible for misjudgment. The constitution requires judges to rule independently according to their conscience and in conformity with constitution and act. There is no provision in the constitution or act that exempts judges from civil liability related to misjudgment, except for judicial precedents.

The Supreme Court has made a precedent that admits judges’ liability for illegal act “only when the judge holds a trail for an illegal or unjust purpose or significantly violates requirements for their duties.” According to this precedent, it would be difficult to hold a judge responsible for any civil liability, even if his ruling is against constitution, act and conscience, does not meet normal rules of society and the law of equality, lacks fairness and public interest and is unjustly influenced by some party and a judge abuses his or her authority when making the ruling.

No matter what kind of misjudgment a judge has made, the chance for winning a civil lawsuit against the judge is very slim. Once confirmed, even misjudgments cannot be overturned unless they meet the requirements for retrial. The level of immunity for judges is way higher when compared with the general immunity for public servants. If a public servant abuses his or her authority, it is considered illegal and the administrative disposition concerned is canceled. And if intentional negligence is found, the nation indemnifies damages and the public servant who committed negligence or gross negligence is also held accountable.

Judges enjoy almost unlimited immunity regarding their rulings based on the precedents that they have made. As for the trials of the People’s Revolutionary Party in the 1960s and 1970s where the accused were sentenced to death due to misjudgment, judges were not held responsible although there were national compensation. This kind of precedents is based on the Anglo-American law that allows judges’ immunity from civil liabilities. The court uses this outdated tradition of common law that says “the king is inviolable” in protecting the independence of the judiciary and judges.

However, there are strong criticisms over this issue even in countries adopting Anglo-American law. Potter Stewart, former justice of the U.S. Supreme Court, was one of the people who were against the immunity. He said that judges can never be immune from liability only because they wear a robe, sit in a court and make a ruling. This comment has triggered the argument that judges should also be responsible for indemnification regarding illegal or absurd rulings.

Although countries with Anglo-American law allow judges’ immunity from civil liabilities, they reprimand judges for making mistakes in the course of ruling. Judges who commit a penal offense are severely punished and dismissed, and any wrongful act of judges are subject to strict disciplinary actions. Wrongful acts of judges in trials, such as being influenced by lobbyists in the course of a trial, treating people on trial in a hostile manner, obstructing evidence search or holding an unfair trial, are reported to an ethics committee and judges concerned receive punishment and are revealed to the public.

However, in Korea, judges committing an irregularity usually resign from his position without getting any punishment. Even if there’s a punishment, details are not disclosed. While a police official who slept in his car parked on a road because he was drunk is deprived of his position, a judge who did violence and destroyed properties only steps down from his position without any other disadvantages.

Deviant behaviors of judges have been on the rise recently. A billionaire charged for embezzlement was ordered to engage in prison labor of 50 days by calculating his daily wage at whopping 500 million won (about 468,000 U.S. dollars). Stepmothers who beat their eight-year-old stepdaughters to death were sentenced to 15 years and 10 years in prison, respectively. Such generous rulings stir up anger among the public. The reason behind this is that judges enjoy the benefit of immunity that was once allowed to kings, states and popes. A dynastic revolution is needed in the judiciary.