분단 60년의 법적 조명 ; "회한과 오욕"의 과거를 바로 잡으려면 -사법부의 과거청산을 위하여-

Abstract

Under the authoritarian regime, Korean judiciary did not secure its

independence from political dictatorship. As a result, it failed to guarantee the

human rights of the people who had been victimized by the power organs. One

retiring Chief Justice lamented that his term was filled with remorse and

disgrace. Even since the 1987 uprising and a series of democratization process,

judicial decisions were kept intact. This paper focuses on two points. First, why

shall we re-evaluate and right the wrongful trials? Or what kind of solution shall

be made for the victims of abuse of powers? Second, how shall we overcome

the legal barriers if we face the wrongful past trials?

My starting point is that the judiciary has to face its past, and consider the

pains caused by the wrongful convictions seriously. I approach its past wrongs

with the perspective of restorative justice, instead of retributive justice or even

revenge. Healing the victims shall be prime objectives, and national reconciliation

and empowering human rights shall be a final goal. Democratization requires that

old bad laws shall be cleansed, and old bad judicial decisions shall be corrected.

Two legal barriers are worth being considered. First, Korean Criminal

Procedure strictly limits the requirement for opening retrial to the cases that new

evidence shall be discovered enough to be found not guilty. Second, It is

another problem that the statute of limitation already expires when the victims

try to make the civil litigation to the state. Restorative justice requires that these

two barriers shall be solved by the judicial interpretation or by the new lawmaking.

Judicial initiative is needed because the judiciary shall correct what they

did wrong, and because it recover the social trust as the final bulwark of the

human rights.