분단 60년의 법적 조명 ; "회한과 오욕"의 과거를 바로 잡으려면 -사법부의 과거청산을 위하여-
Review on the 60 Year-Division in Korean Peninsula in the Legal Perspectives ; Dealing with Wrongful Trials under the Authoritarian Regime

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서울대학교 법학연구소
법학, Vol.46 No.4, pp. 84-120
이용훈 대법원장의 취임사유지담 대법관의 퇴임사이영섭 대법원장사법부의 수난과 인권침해영장없는 구금이 횡행국민의 인권을 무시박종철 고문사(1987년)강신옥 변호사제2차 사법민주화운동사법적 과거청산의 법적 과제
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.
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 46, Number 1/4 (2005)
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