[형정원 KIC] 형사법원의 인권보장역량 평가 Evaluation of Human Rights Competencies of Criminal Courts

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Please refer to the attached file for the English version (Abstract)

연구요약 1


제1장
강태경 최영신 임태훈 김형남

서 론 11

제1절 연구의 목적 13
1. ‘인권’이라는 가치를 소실점으로 형사재판 바라보기 14
2. ‘텍스트’로서의 ‘형사판결’과 ‘소송관계인의 경험’ 15
3. 인권보장역량 삼분론, 그리고 선택과 집중 16
제2절 연구의 내용과 방법 17
1. 형사법원 및 군사법원 인권보장역량 관련 쟁점 분석 17
2. 판례 분석을 통한 형사법원 인권보장역량 평가 18
3. 재판 진행 과정에서의 형사법원 인권보장역량 평가 19
4. 군사법원 인권보장역량 평가 22
5. 형사법원 및 군사법원의 인권보장역량 강화를 위한 제언 23



제2장
강태경 조규석

형사법원 및 군사법원 인권보장역량 쟁점 분석 25

제1절 형사법원 인권보장역량 관련 언론보도 분석 27
1. 주제 분류 27
2. 키워드 분석 28
3. 내용 분석 32
제2절 형사법원 인권보장역량 관련 선행연구 분석 35
1. 형사재판 관련 인권 쟁점에 관한 선행연구 개관 35
2. 공판중심주의에 관한 논의 37
3. 피고인의 권리에 관한 논의 38
4. 피해자의 권리에 관한 논의 40
5. 재심에 관한 논의 41
제3절 군사법원 인권보장역량 관련 선행연구 분석 42
1. 군사법제도 개혁 등에 대한 논의 42
2. 관할관 및 심판관 제도에 관한 논의 45
3. 민간인에 대한 재판권에 대한 논의 47
제4절 소결 49



제3장
강태경 송윤진


판례 분석을 통한 형사법원 인권보장역량 평가 51

제1절 위헌법률심판제청사건 등 분석 53
1. 최근 10년 위헌법률심판제청사건 개관 55
2. 형사법을 심판대상으로 한 위헌법률심판사건결정 분류 56
제2절 대법원 전원합의체 판결 등 분석 79
1. 최근 10년 대법원 전원합의체 판결 등 개관 80
2. 판례 변경 사건 검토 83
3. 젠더 관점에서의 최근 형사판례 동향 분석 85
제3절판결에 대한 실증적 분석을 통해 본 형사법원의 인권보장역량: 선행연구를 중심으로 102
1. 사법 과거사 재심사건 판결 분석 연구(2019) 102
2. 국제인권조약 적용 소송 분석 연구(2019) 110
제4절 소결 117


제4장
최영신 강태경


재판 진행 과정에서의 형사법원 인권보장역량 평가:
사례 및 법정모니터링 자료를 중심으로 121

제1절 피고인의 인권보장 관련 요인 123
1. 판사의 유죄심증 및 예단 123
2. 피고인의 진술권 보장 130
3. 변호인의 조력을 받을 권리 131
4. 증인 신청 132
5. 피고인의 수사기록물 등 열람 등 134
6. 피고인의 특수한 사정에 대한 배려 135
7. 방어권 보장 관련 기타 사례(서류 제출 및 공판 기일 연기
미고지 등) 136
제2절 피해자의 인권보장 관련 요인 137
1. 증인으로서의 진술권 보장 137
2. 피해자의 의견진술권 보장 137
3. 피해자 보호 관련 139
4. 피해자의 사건 관련 정보 공유 145
제3절 증인의 인권보장 관련 요인 146
1. 증인의 진술권 보장 146
2. 증언거부권 148
3. 신변보호 149
4. 기타(증인에 대한 배려 부족 등) 149
제4절 법관의 재판 진행 관련 업무 역량: 법정모니터링 자료를
중심으로 150
1. 공판과정의 절차적 기준 준수 관련 150
2. 재판 진행과 관련된 판사의 업무태도 관련 154
제5절 법원의 공판 지원 업무 역량: 법정모니터링 자료를 중심으로 160
1. 재판의 공정성 확보를 위한 공판 지원 역량 161
2. 법원 직원 및 행정력의 지원 역량 164
제6절 소결 166

제5장
임태훈 김형남 조규석

군사법원 인권보장역량 평가 169

제1절 군사법원 인권보장역량 평가를 위한 기초 검토 171
1. 군사법원의 성격 171
2. 군사법원의 인권보장역량에 관한 선행 연구 분석 186
3. 군사법원의 인권보장역량에 관한 해외 사례 고찰 190
제2절 형사재판 본질 측면에서의 비판적 검토 226
1. 사법권의 독립성 226
2. 적정절차 원칙 242
3. 신속재판 원칙 247
4. 상소율과 상소 사건 처리 결과 251
제3절 소송관계인 인권보장 본질 측면에서의 비판적 검토 255
1. 피고인 255
2. 피해자 및 증인 258
제4절 소결 260



제6장
강태경 최영신 임태훈 김형남 조규석

결 론 265

제1절 형사법원의 인권보장역량 강화를 위한 제언 267
1. 형사법원 인권보장역량 평가 267
2. ‘인권’을 정점으로 한, 법의 통합성 제고 방안 268
3. 소송관계인의 인권보장역량 강화 방안 270
4. 판사의 형사재판 진행 태도 개선을 위한 제언 273
제2절 군사법원 인권보장역량 강화를 위한 제언 274
1. 군사법원 인권보장역량 평가 274
2. 군사법원 개혁 방안 276
3. 군사법원 제도 보안 방안 276
참고문헌 279

Abstract 295

부 록 311 

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Abstract

1. Purpose

The purpose of this study is to critically examine whether criminal courts and military courts exercise their judicial power in compliance with the principles of nulla poena sine lege and due process and in a way that protects the human rights of persons involved in criminal litigation to full extent and promotes the human rights environment of the society in general. This study looks into the criminal courts’ competency in human rights protection in three areas: 1) compliance with due process and the principles deriving from nulla poena sine lege; 2) improvement of the constitutionality of the normative environment surrounding criminal cases; and 3) protection of the human rights of persons involved in criminal litigation. It also looks into the military courts’ competency in human rights protection in two areas: 1) constitutional principles on criminal justice (independence of the judiciary, due process, and expedition of court proceedings); and 2) protection of the human rights of persons involved in criminal litigation.

2. Issues Regarding Criminal Courts’ and Military Courts’ Competency in Human Rights Protection

An analysis of media reports and academic articles regarding the criminal courts’ competency in human rights protection revealed differences between the human rights issues attracting public attention and the human rights issues widely discussed in the academia. In addition, the main target of criticism was the criminal justice system in some issues, whereas commentators focused on the personal competencies of judges adjudicating criminal cases in other issues.

The findings of the analysis on media reports are summarized below. For the past year, media outlets extensively covered the re-trials of certain criminal cases and the issues of state violence and workers’ rights. The media reports on these issues surpassed reports on other issues both in terms of the number of reports and the depth of coverage. As for the content of the reports, positive notes were maintained in the majority of media reports on emergency appeals in cases involving state violence, court judgments promoting workers’ human rights, and the substantive review of arrest warrants. For example, covering an airline convicted for violating the human rights of female attendants, media outlets provided detailed deions of the decision of the bench presiding over the case to assist with readers’ understanding of the case. Media reports regarding cases involving state violence and the substantive review of arrest warrant provided detailed explanations of the criminal justice schemes designed to protect human rights, providing readers with opportunities to understand the significance of human rights protection and the related systems. On the other hand, negative notes were prominently featured in the reports on the re-trial for the Hwaseong serial murders, the sentencing of sexual crimes against minors, the issue of secondary damage caused by courts’ written judgments, and the application of international human rights laws at Korean courts. These negative reports tended to criticize the personal competency of judges presiding over the criminal cases, rather than focusing on the issues of the criminal justice system itself.

This study also analyzes academic articles discussing human rights issues related to criminal proceedings. The findings are summarized below. In 2000 and the following years, academic discussions among criminal law scholars focused on trial-centered proceedings, defendants’ rights, victims’ rights, re-trial, and warrant. Around the time of the 2007 amendment to the Criminal Procedure Act, which was aimed at consolidating the principle of trial-centered proceedings in criminal cases, discussions among scholars were centered around the discovery system and witness questioning. Then, the focus of discussions in the academia shifted to criminal defendants’ rights such as the right to refuse testimony and seek assistance from an attorney, and ways to protect victims’ rights including the engagement of victims in court trial proceedings. Discussions on warrants focused on the exclusion of illegally collected evidence, the substantive review of arrest warrant, and the judicial control of prosecutors. On the other hand, discussions on re-trials addressed a wide range of issues including key cases, unlawful judgments, causes of re-trial, and the re-trial process. Academic discussions mainly criticized the criminal justice system itself, although it may be attributable to the fact that this study analyzes academic articles published in law journals.

Lastly, this study’s findings on academic articles on the military courts’ competency in human rights protection are as follows. This study identified 13 articles directly addressing human rights issues involving the military courts, which indicates the relative lack of researches on the military courts’ competency in human rights protection. Discussions on the reform of the military justice system tended to concentrate on the issue of whether the military courts should be maintained during peace times. The academia is evenly divided on the issue, with opponents stressing the difficulty in democratic control over the military courts, and proponents arguing for the need to consider the special nature of the military organization, military personnel, and civilian employees in the military. The academia is also divided on the issue of “the convening authority and adjudicator system,” specially, whether the system undermines the right to fair trial. The discussions on the “the military courts’ jurisdiction over civilians” are converging on the stance that such jurisdiction should be restricted to the possible extent, so as to achieve full protection of civilians’ right not to be tried in a military court.

3. Assessment of the Criminal Courts’ Competency in Human Rights Protection: Court Judgments

This study reviewed the Constitutional Court judgments and en banc judgments of the Supreme Court that relate to the criminal law over the last decade. The Constitutional Court cases were confined to cases in which courts requested adjudication on the unconstitutionality of statutes. The findings indicate that the criminal courts have made considerable efforts to align the normative environment surrounding criminal proceedings with the principles of basic rights protection, nulla poena sine lege, and due process, by requesting adjudication on constitutionality and en banc deliberation.

Firstly, for the last decade, the criminal courts requested adjudication on constitutionality of statutes pursuant to Article 41 of the Constitutional Court Act across numerous areas including “physical security and freedom,” “mental security and freedom,” “security and freedom of privacy,” “social and economic security and freedom,” “social rights,” and “basic rights of claim,” if the courts suspected that legal provisions infringe on people’s basic rights or violates the constitutional principles on the criminal law such as nulla poena sine lege. Among the 148 cases in which courts requested adjudication on the unconstitutionality of statutes, the Constitutional Court ruled the statutes unconstitutional (or non-conforming to the Constitution) in 84 cases. Given the fact that the Constitutional Court rendered a total of 204 judgments on the constitutionality of statutes in the last decade, the criminal courts are responsible for the majority of the requests for adjudication on the constitutionality of statutes. Meanwhile, in 4,490 cases, litigants filed requests for adjudication on constitutional complaints with the Constitutional Court after courts dismissed their request for the filing of a requests for adjudication on the constitutionality of statutes (“Heon Ba” cases). The Constitutional Court found unconstitutionality in only 60 of the cases. A significant percentage of the 60 cases were merged with other cases involving the same legal provisions in which courts requested for adjudication on the constitutionality of the statutes. The findings suggest that the criminal courts rarely reject litigants’ requests for adjudication on the constitutionality of statutes without reasonable grounds. However, each court determines whether to request adjudication on the constitutionality of statutes at its own discretion, which inevitably results in gaps in judgment on unconstitutionality among different courts.

Secondly, among the cases in which the Constitutional Court found unconstitutionality in statutes for which courts requested adjudication on constitutionality, the majority of the cases involved violations of the liability principle by joint penal provisions (49 judgments), followed by unconstitutionality (or non-conformity to the Constitution) judgments regarding the “freedom of occupation,” “freedom of assembly,” “principle of clarity,” and “balance of the penal system.” The Constitutional Court has consistently declared joint penal provisions without exemption unconstitutional since 2007. The criminal courts also consistently requested adjudication on the constitutionality of joint penal statues without exemption. The courts’ efforts greatly contributed to the revision of around 500 joint penal provisions and the alignment with the provisions with the principle of punishment based on liability. The criminal courts prevented infringement on the freedom of occupation by requesting adjudication on the constitutionality of provisions revoking various licenses held by criminals, and contributed to improved protection of the freedom of assembly through requests for adjudication on the constitutionality of provisions providing for time and space restrictions on assemblies and protests.

Thirdly, in the last decade, the Supreme Court rendered 54 judgments and eight decisions in en banc cases. In 18 cases (15 judgments and 3 decisions), the Supreme Court changes its previous opinions on the construction of the Constitution and other statutes. In some of the 18 cases, the Supreme Court adjudicated on whether criminal defendants’ acts constituted specific crimes. Specifically, the cases involved the following issues: the elements of spousal rape; the elements of obstruction of business by a strike; justifiable reasons for conscientious objection to military service; the scope of prohibited election campaign activities; “a person who handles another person’s business” in breach of trust; “intention to dispose” in frauds; disposition and embezzlement by trustees of titles; disposition and embezzlement by custodians; and the criteria for determining whether trust has been breached in breach of trust cases. In a case regarding the effect of refusal to testify, the Supreme Court denied the admissibility of a written testimony at the prosecutors’ office if the defendant refused to testify. In another case in which a witness was not informed of the right to refuse testimony, the court ruled that the witness’ false testimony does not constitute a perjury. In addition, this study analyzed court judgments on sexual crimes involving abuse of occupational authority, from the perspective of the protection of women’s rights. The trial court judgments acquitting the defendants of sexual crimes involving abuse of power commonly posed the issue of incongruity between the general theory on the determination of assailants’ use of force and the specific criteria employed in the judgments. Specifically, the judgments referred to the general theory that whether a defendant exercised intangible force enough to restrict the victim’s free will should be determined by a comprehensive review of the victim’s testimony and other vicarious facts. However, when it comes to the determination of use of force in the specific cases, the courts relied on the “individual” remarks made by the victims.

Fourthly, this study reviewed a previous study that quantitatively analyzed 1,019 re-trials of court judgments that found defendants guilty of violating the National Security Act, the Anti-Communism Act, or Emergency Measures between 1948 and 1998. The core findings of the previous study are summarized below. ① (Types of Cases) 33.3% of the cases had defendants involved in student movements, followed by cases with defendants involved in alleged espionage (19.7%), and defendants involved in alleged anti-government political movements (16.1%). The majority of the cases (67.4%) were re-trials of trial judgments rendered in 1979. ② (Applicable Laws) 51.7% of the re-trials had defendants convicted of violations of Emergency Measures, followed by violations of the National Security Act (26.6%) and the Anti-Communism Act (27.7%). ③ (Requesters of Re-trials) 60.9% of the re-trials were requested by the defendants, and 20.6% were requested by prosecutors. 18.5% of the re-trials were requested after the deaths of the defendants by the bereaved families or legal representatives. ④ (Reason for Re-trials) In 49.2% of the cases, requests for re-trial were accepted on the ground that the laws on which the original judgments were rendered had been found unconstitutional or void (Article 420, subparagraph 5, Criminal Procedure Act). In 47.7% of the cases, re-trial requests were accepted because judicial police officers and others involved in the investigation committed crimes related to their duties (Article 420, subparagraph 7, Criminal Procedure Act). ⑤ (Results) 96.6% of the defendants who received re-trials were acquitted of at least one of the crimes that they were indicted for. 34.4% of the defendants were acquitted on account of the failure to prove the arbitrariness of the defendant and witness testimonies used as evidence in the court judgments subject to re-trials.

Fifthly, this study analyzed a previous research that quantitatively analyzed 3,186 cases in which at least one of the seven key international human rights treaties was applied. Into the 2010’s, Korea saw a rapid increase in lawsuits involving international human rights treaties, and courts began to address issues regarding the effects and construction of those treaties in their opinions. However, 96.2% of the cases were conscientious objection cases (3,066 cases in total). The most frequently employed human rights treaty was the International Covenant on Civil and Political Rights (3,125 cases), which is a treaty closely associated with conscientious objections. Other than the conscientious objection cases, Korean courts rarely apply international human rights treaties in their judgments, one of the reasons being the judges’ unfamiliarity with the treaties.

4. Assessment of the Criminal Courts’ Competency in Human Rights Protection: Court Proceedings

In order to assess how well the criminal courts protect human rights protection during court proceedings from the perspective of litigants and others involved in criminal cases, this study performed a meta-analysis of case studies with attorneys and the court monitoring results of The Good Law. The findings are presented below.

Firstly, the attorneys who participated in the case studies listed the positive and negative factors affecting human rights protection during criminal proceedings as follows. 1) As for the protection of defendants’ human rights, the respondents mentioned the following factors: judges’ preconceptions about the guilt of defendants; protection of defendants’ right to testify and seek attorney assistance; factors regarding witness request and questioning; defendants’ access to investigation records; consideration of defendants’ special circumstances; and other factors related to defendants’ defenses. 2) Factors related to the protection of victims’ human rights included: protection of victims’ right to testify as witnesses; protection of victims’ right to state their opinions; protection of victims; and sharing of case information with victims. 3) Factors related to the protection of witnesses’ human rights included: protection of witnesses’ right to testify; the right to refuse testimony; witness protection; and consideration of witnesses.

Secondly, this study analyzed the findings regarding judges’ competency in court proceedings from The Good Law’s 2013 and 2014 court monitoring activities. The findings are as follows. 1) With regard to compliance with procedural rules during trials, the judges received negative ratings on the notification of the right to refuse testimony and appropriate intervention in conflicts between litigants during trials. On the other hand, the judges received positive ratings on the handling of evidence application and reception. 2) With regard to the judges’ attitude during proceedings, they received positive ratings for using respectful languages when speaking to the litigants and closely listening to their testimonies. However, they received negative ratings on the explanation of legal jargons in plain languages. In addition, while most judges appeared at court rooms on time, some judges were negatively rated for being late and proceeding with the hearing without asking for the understanding of those present in the courtrooms.

Thirdly, the following paragraphs summarize the findings regarding courts’ competency in supporting trial proceedings from The Good Law’s 2013 and 2014 court monitoring activities. The findings are as follows. 1) With regard to competency in supporting fair trials, the courts received positive ratings for putting the cases where the litigants are present at the courtrooms before the cases where attorneys have been appointed. However, the monitoring reports pointed out the need for improving the speed of the courts’ reception systems. 2) As for the competency of court employees, court guards were positively rated on their attitude towards audiences. However, the monitoring reports pointed out the need to improve the visibility and comprehensibility of signs at courts.

5. Assessment of the Military Courts’ Competency in Human Rights Protection

The military court is a special court established in consideration of the special nature of the military (Article 110, Constitution). The military courts are responsible for criminal proceedings against active service members, civilian employees and others equivalent to them, and operate under the military law system comprising of the Military Court Act, the Military Criminal Act, and others. Article 27 of the Constitution excludes civilians who are not on active military service or employees of the military forces from the jurisdiction of the military courts, unless they committed specific crimes listed in the provision. However, under martial laws, civilians may be tried in military courts and, for some crimes, the first-instance trial becomes the final instance of the cases. The internal regulations of the military courts are enacted by the Supreme Court. The military law system, including the courts and the specific statutes, were vastly revised after the death of Private Yoon in 2014. However, some of the systems frequently named for abolishment, such as the convening authority system, the verification right of the convening authorities (mitigation right), and the adjudicator system, survived the reform albeit with reduced powers. The reform included the guarantee of military judges’ terms in office. However, personal and physical independence has yet to be achieved. On account of the special nature of the military courts, many researchers studied the unconstitutionality, legitimacy, and necessity of various practices and systems surrounding the military court system. In particular, the National Human Rights Commission commissioned a research project regarding their competency in human rights protection.

International human rights organizations proposed criteria for human rights protection regarding the establishment and operation of military courts. A review of military courts in the United States, the United Kingdom, and Germany identified the countries’ efforts to improve on their military court system in ways aimed at protecting the human rights and basic rights of military personnel. In the United States, military commanders exercise significant power throughout criminal proceedings including investigation, prosecution, and trial. The commanders also enjoy a wide range of discretion on mitigating punishments. However, recent controversies involving the acquittal of some sexual offenders in the military led to an attempt to reduce the scope of discretion. Until recently, the United Kingdom conferred military commanders with a wide scope of powers as was the case in the United States. However, a series of decisions made by the European Court of Human Rights led to separation of investigation, prosecution, and trial, and the appointment of a large number of civilians, in military courts. As for Germany, one noteworthy fact is that the country does not operate any military court during peace times despite its conion policy. Instead, “standard” courts in Germany have divisions tasked with military affairs, or handle administrative cases in the military (disciplinary actions and petitions, etc.). French does not have a military court for peace times, either. Benches in civilian courts adjudicate cases related to the military law. The above examples in other countries aptly represent the global trend to reduce the “consideration” of the special nature of the military and gradually aligning the military law system with the criminal justice system in general.

Elements unique to the military courts include adjudicators, convening authorities, and convening authorities’ verification right. Another factor that distinguishes military courts from the other courts is that the executive branch, not the judicial branch, determines the personnel affairs in the military courts. The adjudicator is a person who is not a judge, but participates in the trial of a specific case at the order of a commander. This system violates the Constitutional stipulation that citizens have the right to be tried by judges. The convening authority refers to the highest-ranking commander within the jurisdiction of a military court. The convening authority has the power to supervise the military court in accordance with the law. The convening authority has the power to review a military court judgment, and mitigate the punishment by up to a third of the sentence. The system allows a person other than judges to modify a court judgment at his/her discretion not conferred by the law. In this regard, the system is against the rule of law, as well as the Constitution. The Minister of National Defense and the Joint Chief of staff of each branch of the military jointly exercise the authority over the personnel management of military judges. In other words, the personnel affairs regarding military judges can be determined by persons outside the judiciary, which violates the principle of separation of power. The military has argued that these special systems are justified by the special nature of military crimes tried by military courts. However, this argument loses its validity before the statistics that only 8% of the cases tried at the military courts in recent years involved military crimes. If the aforementioned systems stand on unjustifiable grounds, the systems need to be abolished or revised to eliminate the violation of the guiding principles of criminal proceedings. In fact, the military has commenced the efforts to abolish or reform the systems.

Among the typical functions of criminal courts, the military courts differ from the civilian courts in terms of open trials, presumption of defendants’ innocence, expedition, and appeals against court judgments. The military courts do not show significance difference from the civilian courts in terms of the functions related to human rights, such as the issuance of warrants, arrests, and the review of legality of arrest. As for open trials, trials at military courts are open to the public in the formal sense. However, the public’s meaningful access to military courts is significantly restricted by the fact that most military courts are located within military camps. As for presumption of innocence, a military personnel indicted for a crime is put on a forced leave, which makes it difficult for the defendant to file appeals against court judgments. As for expedition of court proceedings, first-instance military courts conclude their proceedings faster than civilian courts. However, higher military courts take longer to finish their proceedings than civilian courts of the same levels. Moving on to appeals, military courts report a much higher percentage of judgments overturned at higher courts on account of sentencing errors, which suggests that the sentencing guidelines from the Supreme Court do not work effectively in the military courts. These issues may work in disadvantage of people under the jurisdiction of the military courts, which may constitute discrimination against those personnel. Therefore, measures need to be taken to address the issue.

To assess the human rights protection at the military courts, interviews were conducted with those who experienced military court proceedings as defendants, victims, and witnesses. As the military courts borrow most of the systems for human rights protection from civilian courts, the interviews focused on whether the “borrowing” has been properly implemented, and the borrowed systems are achieving the intended effects.

In the interviews, defendants reported damages caused by poor performance of public defenders, and invasion of privacy during the summoning process. Victims and witnesses reported losing confidence in the courts due to administrative errors and unreasonable elements in the courtrooms. The interviews also identified the use of public defenders as victims’ representatives.

6. Proposals for the Human Rights Protection Competency Building for the Criminal and Military Courts.

By way of conclusion, this study proposes ways to build the competency of the criminal and military courts in human rights protection.

An assessment of the criminal courts’ competency in human rights protection showed that, while the criminal courts received positive reviews regarding the operation of systems under the Criminal Procedure Act, they were found to be somewhat lacking in the active application of international human rights treaties, sufficient consideration of the positions of defendants, victims, and witnesses, and other areas that require the personal competency of judges. This study proposes ways to address these issues in three areas: improvement of legal integrity; enhanced human rights protection for persons involved in court proceedings; and strengthening of the fairness and integrity of judges.

As ways to improve legal integrity, this study proposes measures in the following categories: improvement of the re-trial system; and the establishment of systems to support the application of international human rights treaties. Specifically, measures to improve the re-trial system include: extending the retention period for case records; ensuring the ability to file for a re-trial against formal judgments; inserting provisions on the period between a re-trial request and the commencement of the re-trial; and inserting provisions on the succession of litigations. As for measures to support the provision of international human rights treaties, this study proposes: developing a database on international human rights treaties; publishing a practical guide on the international human rights law; engaging in systemic translation efforts for the relevant international norms; and developing training programs for judges at the Judicial Research and Training Institute.

This study proposed the following measures to enhance human rights protection for persons involved in court proceedings: expanding defendants’ right to defend themselves; preventing the disclosure of victims’ personal information; protecting the victims’ right to refute defendants’ statements; restricting the types of questions to victims; ensuring the effectiveness of compensation orders; establishing an explanation procedure for requests for summoning witnesses; enhancing witness protection; and taking measures to protect and manage witnesses at the court. As for measures to strengthen the fairness and integrity of judges, this study proposes: increasing the number of judges; and restricting the number of cases assigned to a single bench.

With regard to the military courts’ competency in human rights protection, this study proposes long-term and macroscopic measures to reform the military courts, and short-term and microscopic measures to improve on the military courts. In the long term, Korea needs to consider transferring the military courts from the Ministry of National Defense to the Supreme Court. In the short term, measures need to be developed to address the current issues found with the military courts. As ways to reform the military courts, this study proposes transferring the military courts to the Supreme Court, and replacing them with military divisions at high courts and regional courts. As for measures for short-term improvement, this study proposes abolishing the convening authorities, adjudicators, and convening authorities’ verification rights, changing the affiliations of all military judges to the Ministry of National Defense, and moving the physical locations of military courts outside of the military camps. 

https://www.kicj.re.kr/board.es?mid=a20201000000&bid=0029&list_no=12672&act=view