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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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- Authors
- Issue Date
- 2005
- Publisher
- 서울대학교 법학연구소
- Citation
- 법학, Vol.46 No.4, pp. 84-120
- Keywords
- 이용훈 대법원장의 취임사 ; 유지담 대법관의 퇴임사 ; 이영섭 대법원장 ; 사법부의 수난과 인권침해 ; 영장없는 구금이 횡행 ; 국민의 인권을 무시 ; 박종철 고문사(1987년) ; 강신옥 변호사 ; 제2차 사법민주화운동 ; 사법적 과거청산의 법적 과제
- 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.
- ISSN
- 1598-222X
- Language
- Korean
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