These days, the number of criminal appeal cases that the Supreme Court were obliged to judge increased remarkably. As the criminal cases have no limitation on the appeal, the unreasonable appeals have continued to file. The hearing of fact has often done despite limitation on the appeal to let the Supreme Court bear burden and not to judge cases properly that had legal dispute. And the Supreme Court had difficulties at attaining its goal of uniform interpretation of laws and regulations to let judges inspect so many useless appeal cases and not to assure the right of appellants ly and properly.
The revision of laws on appeal system was proposed many times, for instance, the appeal department of the High court, the increase of justice of the Supreme Court and the independent justice of the Supreme Court. In March 2010, the Supreme Court announced reformation of justice system to suggest establishment of inspection department of the appeal at the High court: Most of the professionals who were involved in inspection of the appeal agreed with reformation of criminal appeal system, and they suggested considerably different reformation. This study discussed outlines of the appeal system and examined criminal appeal inspection. And the study inspected reformations that were suggested before to examine legislation cases in foreign countries in many-sided ways and to give a solution.
The appeal asks higher court to give a remedy of the judgement that has not been decided yet. The appeal system that higher court can make correction of mistakes of the original judgment shall relieve defendant from disadvantages to do two kinds of things, that is to say, the one is to unify interpretation of laws and regulations and the other is to produce legal stability and justice. On the other hand, there are some concerns that the appeal can be used to postpone litigation. So not only making correction of wrong judgement but also prevention of delayed procedure should be harmonized.
The Supreme Court that consists of the chief justice and justice of the Supreme Court shall be in charge of appeal, and the number of justice including chief justice shall be 14. The Supreme Court that plays a role of the highest court gives justice policy directions by using judgement of the cases to express will of protection of the people's rights. The higher court is said to have two goals, that is to say, unification of interpretation of laws and regulations, and remedy of the rights of concerned parties. The Criminal Procedure Act says that higher court is allowed to inspect laws and regulations only and to relieve rights of concerned parties in the scope of dealing with laws and regulations, So the goal of the appeal is said to unify interpretation of laws and regulations. The remedy of rights of concerned party shall be important at individual case: But the remady belongs not to the court that inspects facts but to the Supreme Court.
In 2009, the appeal court received 32,361 cases and each one of the justice who comprised 12 justices excluding the chief justice and chief of the administration of the Court was forced to judge more than 2,700 cases in average a month. The number of the case that appeal court received in 2009 increased 15.4% more than 28,040 cases that the court did in 2008. In other words, 18,279 criminal cases of appeal court in 2009 was 24.1% up than 14,729 cases in 2008 to increase 3 times or more compared with 7% of civil cases during same period. The appeal of criminal cases rapidly increased because the Constitutional Court judges that the estimation of number of the days of unconvicted detention of Article 57-1 of the Criminal Act violated the Constitution.
The study examined legislations of advanced countries to solve problems of the criminal appeal court. In the UK and the United States, after the first trial judges, the appeal court is allowed to judge whether the trial is wrong or right. The appeal against the first trial shall be limited within specific scope subject to higher court's permit. The Supreme Court of the UK that was founded in October 2009 consists of 12 justices including chief justice, while that of the Federal Government of the United States does 9 justices including chief justice. Not only the United States but also the UK does not admit of appeal rights of the defendant, and courts are permitted to appeal at their discretion. The permit system allows justices to be concentrated on important cases to spend time and efforts intensively.
In Germany, civil case only adopts an appeal permit, while criminal case has no limitation. So appeal system of Germany is similar to that of Korea. The criminal trial in Germany separates minor crimes from major crimes to judge minor crime cases ly. Germany has three trial system as Korea has, and it has adopted two trial system to judge major crime cases, that is to say, the first trail at the criminal department of district courts, and the second trail that appeals directly to the Supreme Court of the Federal Government. The highest court in Germany consists of not only the Supreme Court of the Federal Government but also the Court of Administration, Finance, Labor Affairs and Society of the Federal Government. And the Supreme Court of the Federal Government consists of 12 civil courts as well as 5 criminal courts to have 131 judges including the Chief Justice of the Supreme Court of the Federal Government. Germany does not give limitation on appeal of the criminal case, and it has much more judges of the highest court to allocate the judges efficiently by dual system of minor crime and major crime that is different from court system in Korea.
In France, major crimes were not permitted to appeal. From the year of 2000, judgment at major crime court was permitted to appeal to let another major crime court having different jurisdiction can judge appeal case. La Cour de Cassation, the highest court in France, can supervise lower class courts to keep consistency of judicial precedents and interpretation of laws and regulations and not to deal with law suit cases of low class courts. La Cour de Cassation has been specialized with many judges same as the Supreme Court of the Federal Government of Germany is, that is to say, 5 civil courts including 3 civil courts as well as courts of commerce, finance, economy and society, and 1 chief justice, 120 judges including chief of each department.
In Japan, the highest court can judge appeal of all of the criminal cases. The highest court that consists of 15 judges including minister of the justice can judge appeal of violation of not only the Constitution but also judicial precedent. The court is permitted to judge appeal cases including important subjects concerning interpretation of laws and regulations in accordance with appeal of concerned party. So an appeal permit system is thought to be introduced actually. And police court can actually distinguish minor crimes to take actions against frequent crimes to differ from the court of Korea.
The legislation of criminal appeal trial in not only advanced countries and Korea has features as follow: Other countries than Korea have classified criminal appeal cases into minor crime and major crime to separate processing procedures of each case. And the United States, the UK, France and Japan have limitation on the appeal of criminal cases, while Korea as well as has limitation on the appeal of civil case and almost no limitation on criminal case. The United States, the UK and Japan have small number of justice of the Supreme Court, while Germany and France have many justices to be specialized. Germany has the Constitutional Court of the Federal Government and France has the Constitutional Court to differ from the United States, the UK and Japan that have no independent constitutional court.
The appeal trial of the High court that the Supreme Court has suggested puts an appeal trial at the High court to let three judges decide upon qualification of the appeal. The Supreme Court can still do appeal trial to prevent appeal courts from being divided, and may have independent appeal procedure to assure the people of the right of access to courts. The appeal trials of the High court may have difficulties at unified interpretation of laws and regulations between them. When a concerned party does not agree with the court's decision to appeal immediately, trials shall be developed in order of the first trial, the second trial, appeal inspection department at the High court and the Supreme Court to produce four trial system and to be criticized.
The criminal court needs to employ judges and prosecutors enough to judge criminal appeal cases effectively. These days, the politicians are asking for reformation of the court by increasing number of justice of the Supreme Court. Most of the justices of the Supreme Court have been appointed among high-ranking judges who have experienced for a long time so that they have produced harmful effects of bureaucratism and damages of independence of the judges. In addition to judges, prosecutors, lawyers, and the ones who worked as professors of law shall join appeal trail to have influence upon trial of the Supreme Court.
Without the countermeasure of enormous increase of the cases at the Supreme Court, the introduction of appeal inspection and employment of judges may not be effective. Too many cases are applied to the criminal appeal trial to require macroscopic program solving in order to reform criminal justice system. At first, the principle of selection and concentration shall be used to have dual processing procedures of criminal cases, that is to say, normal processing and processing. Low class court trial shall be strengthened and courts shall be divided into two, that is to say, first trial court and second trial court to help the Supreme Court be legal policy court. The people shall be given the rights of access to courts by solving criminal appeal trial related problems, and macroscopic and microscopic reformation needs to be promoted in order to elevate people's reliability upon criminal justice.