Wonyol Jon, Reexamination of Grounds for Judicial Recusal, The Justice, Vol. 173 (2019), pp. 67-106.
<Abstract>
Demands for neutral and detached judges are rising, and the basic criteria for judicial disqualification in civil cases should be first provided from recusal articles, i.e. §41~§50 of Korean Civil Procedure Code(KCPC). However, those articles do not play their role in practice, and the crevice is being filled by Internal Regulations by the Supreme Court and Ethical Recommendations from Supreme Court Ethics Committee, which are not published to the general public. One of the main reasons why those articles do not play their roles is that the present recusal articles of KCPC are almost the same as the articles of 1877 German ‘Civilprozeßordnung’. In other words, the recusal articles of KCPC are more than 140 years old, and have not reflected the social and judicial changes in Korea during that time. In revision to the present recusal articles in KCPC in the future, the points below should be considered: (1) The revision should include the social, economic and judicial changes in Korea; (2) It should accept viewpoint not of judges but of the third party; (3) it should provide economic conflict provisions in detail; (4) The relation between judges and lawyers should be regulated minutely; (5) previous participation in the arbitral and other procedures should also be added to recusal grounds. But one of the most important factors that should be pondered in revising recusal articles is that judges do have duty to sit, in contrast to duty to recuse. Future revision should modernize and materialize the present recusal articles with the equilibrium between those two duties.
<Keywords>
Recusal, Disqualification, Filing for judicial disqualification, Ethical recommendations, Viewpoint of the third party, Conflict of interest
Wonyol Jon, Reexamination of Grounds for Judicial Recusal, The Justice, Vol. 173 (2019), pp. 67-106.
<Abstract>
Demands for neutral and detached judges are rising, and the basic criteria for judicial disqualification in civil cases should be first provided from recusal articles, i.e. §41~§50 of Korean Civil Procedure Code(KCPC). However, those articles do not play their role in practice, and the crevice is being filled by Internal Regulations by the Supreme Court and Ethical Recommendations from Supreme Court Ethics Committee, which are not published to the general public. One of the main reasons why those articles do not play their roles is that the present recusal articles of KCPC are almost the same as the articles of 1877 German ‘Civilprozeßordnung’. In other words, the recusal articles of KCPC are more than 140 years old, and have not reflected the social and judicial changes in Korea during that time. In revision to the present recusal articles in KCPC in the future, the points below should be considered: (1) The revision should include the social, economic and judicial changes in Korea; (2) It should accept viewpoint not of judges but of the third party; (3) it should provide economic conflict provisions in detail; (4) The relation between judges and lawyers should be regulated minutely; (5) previous participation in the arbitral and other procedures should also be added to recusal grounds. But one of the most important factors that should be pondered in revising recusal articles is that judges do have duty to sit, in contrast to duty to recuse. Future revision should modernize and materialize the present recusal articles with the equilibrium between those two duties.
<Keywords>
Recusal, Disqualification, Filing for judicial disqualification, Ethical recommendations, Viewpoint of the third party, Conflict of interest