+ A

German law experts parse differences in Korea’s judiciary

Nov 13,2018
이미지뷰
Three German judges who attended an academic conference at Korea University talks to the Korea JoongAng Daily at the university’s faculty house last Wednesday. From left to right, Lisa Jani, a judge in the Berlin Criminal Court; Dr. Philipp Wittmann, a constitutional law researcher at the Federal Constitutional Court and Michael Hund, a former vice president of the Federal Administrative Court. [PARK SEONG-GWAN]
An investigation into power abuse at the highest levels of the judiciary has stalled after a major suspect refuses to cooperate despite his arrest last month.

Lim Jong-hun, the former deputy head of the National Court Administration, the Supreme Court of Korea’s administrative affairs body, was arrested on Oct. 27 for allegedly helping former Chief Justice Yang Sung-tae abuse his power.

Yang, who served most of his term under former President Park Geun-hye from 2011 to 2017, stands accused of influencing decisions at the Supreme Court to curry favor with Park, a direct violation of the constitutional principle of the separation of power. He allegedly used politically sensitive trials as bargaining chips and kept a blacklist of judges based on their political leanings.

Yang was allegedly hoping Park would go along with a plan he had to set up a new court of appeals.

Lim has refused to answer questions by prosecutors, which has made it impossible for investigators to link him to the abuses by Yang.

The scandal has raised questions about the structure of the judiciary itself that allowed such abuse to take place. Some analysts blame the hierarchical structure of the judiciary - the chief justice of the Supreme Court appoints all levels of judges - as well as a lack of checks and balances.

Parties in the legislature, led by the ruling Democratic Party, are pushing the idea of a special court being established to try the case. Analysts have suggested that a regular criminal court would not be able to try a power abuse scandal in the judiciary precisely because it is beholden to the judicial hierarchy. But others say that would undermine the independence of the judiciary and jeopardize the rule of law in Korea as a whole.

Korea now faces a major dilemma with regards to one of its three branches of government: how to control and punish misdeeds within the judiciary while, at the same time, preserving its independence.

In the midst of this national debate, Korea University held a conference hosted by the university’s Legal Research Institute and the Konrad Adenauer Foundation on the issue of judicial independence and democracy last week.

Three judges from Germany sat on the panel with Korean academics and judges. They were Michael Hund, a former vice president of the Federal Administrative Court; Dr. Philipp Wittmann, a constitutional law researcher at the Federal Constitutional Court; and Lisa Jani, a judge in the Berlin Criminal Court.

The general verdict among the foreign observers was that while Korea and Germany shared many similarities in their systems, like democratic constitutions and observance of the rule of law, the German system rarely sees cases of judicial misconduct comparable to the recent scandal. Panel members discussed elements of the German system that serve to prevent judicial misconduct while ensuring the independence of the judiciary from executive or legislative interference.

One of the primary elements cited was the existence of a law in Germany that outlaws distortions of the law, a law with a long history that serves as a pre-emptive barrier to power abuse by judges. The principle of judicial independence is also strongly enforced in Germany. Prosecutorial and judicial powers are also separate, and the establishment of any special courts outside the framework of the existing judiciary is forbidden.

The Korea JoongAng Daily interviewed the three German judges at Korea University last Wednesday about how judicial independence is enforced in their country and what lessons can be learned by Korea.

Below are edited excerpts of the interview.



Q. Can you tell us about how the judiciary operates in Germany and what intuitions are in place to ensure judicial independence?

A. LJ
: In Germany it is important for judges to be independent from everything, which means they can’t be influenced by parties, the president of the court, minister of justice, etcetera. We’re bound by our constitution and we have to apply the law.

I used to be a state prosecutor, and there, it is different since prosecutors are bound to the decisions that their bosses and chiefs and the ministry gives but not to the orders of judges.

If there is heavy misconduct on purpose by a judge, you can be tried for twisting the law. Other judges try the case, but the state prosecution office sees if somebody needs to be indicted for twisting the law based on their criteria. But this only happens in cases where a judge has seriously distorted the law. But this has only happened twice in the last 20 years.



What are your views on the establishment of a special court to try misconduct within the judiciary, and would such a case be possible in Germany?

PW
: The concept of judicial independence is quite complicated and it’s impossible for us to comment on the Korean situation. But in Germany, according to its constitution, special courts may not be established, meaning misconduct by judges or anyone else must be tried in the normal system of courts. Establishing a court for special circumstances would mean taking influence away from normal judges and exerting influence on the result.

I think establishing special courts from a purely German perspective would be very difficult or even unconstitutional. Misconduct by judges, if really severe, is dealt with in the criminal system, as the crime of intentionally misinterpreting the law. If that threshold is not met, there are also disciplinary measures.

If a judge is found guilty of voluntarily or misapplying the law, he will be automatically removed from office, because this is a very severe crime.

MH: Special courts are banned by the constitution. There is a reason for this based in Germany’s history. In World War II and under the rule of the Nazis, there was a special criminal court - the People’s Court - set up outside the constitutional frame which tried particular cases related to political criminals.

They took cases away from ordinary courts because the Nazis were unsatisfied with rulings by such ordinary courts and wanted to exercise law to suit their own demands.

Adolf Hitler himself ordered the establishment of this court after he was dissatisfied with the outcome of the Reichstag Fire trial in 1933.

Many unjust rulings came out of this; over 5,200 executions were sentenced by this court.

There was a famous case among these: on July 20, 1944, there was an attempt to kill Hitler and major leaders of the Nazi regime. The court ruled that those who participated in the plot should be executed, and its organizers were shot on the spot. This was a summary execution sentence. We can see the extent to which the defendants’ human rights were violated.

Legal analysts say one of the primary causes of the Supreme Court’s power abuse scandal lies in the hierarchical nature of Korea’s judiciary. How are judges appointed in Germany?

PW: There are at least three different systems. At the lowest level, there are the courts of the federal states. Judges working in the states are chosen by the Ministry of Justice of the respective state or a committee within the state composed of a mix of parliamentarians and current judges.

Then there are the judges at the federal level. They are chosen by a committee consisting of members of the Bundestag (federal lower house), and ministers of the states, and they choose which state judges to promote to the federal level.

Lastly there are federal constitutional judges, half of whom are selected by the Bundestag and half elected by the Bundesrat, the upper house.



Does the role of lawmakers in the appointment of judges mean that they can be politically biased or beholden to certain political elements?

PW
: Yes of course there are certain political elements within the system. It has to be because only members of the Bundestag and Landtag - parliaments of the states - are directly elected by the public. Every person acting for the state has to be legitimized by either the parliament directly or a committee.

According to the German constitution, there cannot be any individual with responsibility in the state who is at least indirectly chosen by the parliament.

But in order to balance the process, German law says constitutional judges can only be elected by a two-thirds majority in the parliament. And in German history there has never been a single party controlling two thirds of the two houses, and no single party has been able to freely choose constitutional judges. They have to compromise with other parties, and this was designed to make sure judges do not act as political marionettes and are acceptable even to the minority.



How is judicial restraint encouraged, and what ensures that judges don’t exercise overt activism.

There is no textual element that enforces restraint, but the principle of respecting executive and legislative power remains strictly abided by. This is also in the constitution.


BY SHIM KYU-SEOK [shim.kyuseok@joongang.co.kr]