정치적으로 민감한 사건과 한국에서의 사법 적극주의

초록

In the past, Korean judiciary showed judicial passivism by usually showing judicial deference rather than judicial intrusion for legislative or executive decision or power. However, since military regime ended in early 1990s, Korean judiciary has issued many decisions based on judicial activism and even has not hesitated to deal with politically sensitive cases. The felony case of former Presidents Chun & Roh dealt by Korean Supreme Court would be a representative example. This paper analyzesthe case in terms of the dichotomy of judicial activism and judicial passivism. In addition, it compares the former Presidents case with similar American and Japanese cases on several issues. Political question issue would be the first comparing point. Whether a successful Coup d’etat could be dealt by the judiciary and punished by the judicial decision is examined comparing similar politically-sensitivecases such as Baker v. Carr(1962), Luther v. Bordon(1849) and United States v. Nixon(1974) issued by U.S Supreme Court. A Japanese Supreme Court case, Koshiyama v. Chairman, Tokyo Metropolitan Election Comm’n, would be analyzed and compared in terms of political question doctrine as well. This paper also points out the problem of inconsistency in legal decisions on the same case which the former Korean Presidents case has. As for the same case, the decisions by Korean prosecution’s office, Korean Constitutional Court and Korean Supreme Court were, more or less, different. Finally, this paper deals withthe issue of pardon which was made by the President after the Korean Supreme Court decision. It explores how the presidential pardon undermines the dignity of judiciary.