裁判의 客觀性에 관한 硏究 : 法의 解釋과 事實의 認定에 關하여 Regarding interpretation of the law and admission of the facts = A Study on the Objectivity in Judgement

다국어 초록 (Multilingual Abstract)

Law should be obeyed. If it should not be obeyed, social order can not be maintained and justice will not be realized. In order to keep the law, violators have to be strictly punished, sufferers are to be duly compensated, and preventive measures are to be taken.
When a dispute arises between individuals or between a person and the government with regards to their interests, or when a violation of the law takes place, it is the judgement of the court that discerns between right and wrong. Therefore, the judgement requires to be fair. And for the purpose of its fairness, objectivity in the judgement is to be regarded.
We are likely to take it for granted that judgement can be made objectively. This belief is based on the assumption that it would be a simple mechanism to determine the facts of a dispute, interpret the related laws, and then apply them to the facts.
For example, if there arises a dispute between two persons on the problem of accounts, it would not pose any difficulties to determine who is the creditor and who is the debtor. And when this relationship between creditor and debtor is fixed, it is quite obvious that the latter should pay off his debt in accordence with the law.
In this way, we are likely to take it for granted that judgement can be made objectively. But judgement can hardly be made objectively on account of the two main reasons:
Firstly, context of the law statutes can be interpreted in various ways. In other words, a provision can be interpreted in the meaning of A or B. In this case, to take the meaning of A or B depends entirely on the judge's view of the law. Accordingly, the judgement is affected by divergent personal views.
Secondly, admission of the facts is also not so simple as the interpretation of the law is. Admission of the facts is primarily based on the evidences. But usually evidences presented are those of contradicting nature. So, which one of the contradicting evidences is to be adopted is entirely dependent on the free conviction of the judge's. So to speak, different conclusion can be made from the same evidences.
In this way, judgement is made rather subjectively than objectively. So, the possibility is that a man can be sentenced to death for murder by a judge, while the same man can be acquited of the charge by another. Judgement is put under such a profound influence of the subjective views.
Hence, what we can expect at most is a "fair" judgement acceptible to everyone. For the realization of such a fair judgement, the following are to be considered:
Firstly, judgement should not be allowed to be made under a political oppression or propagandism. Secondly, the society has to establish a value system to be respected and followed by everyone. And thridly, big difference should not exist among judges in their views of the law and value.
As long as position and livelihood of the judges are threatend and big difference exists among judges in their views of the value, objective(fair) judgement can hardly be expected.

목차 (Table of Contents)

• 一. 序論
• 二. 法의 解釋
• 三. 事實의 認定
• 四. 結論