A judge`s conscience

The ancient Korean expression “magistrates’ trial” means lashing a person’s buttocks makes even the innocent confess to committing sin. In the West, however, more absurd trials used to take place. According to the Code of Hammurabi, a Babylonian law code dating back to about 1772 B.C., if a person was accused of exercising witchcraft on others with no proof, the accused was thrown into a river to find the truth. If the person floated in the river, he or she was considered innocent. If he or she sank, the verdict was guilty. This law seemed no better than witchcraft in achieving justice. Witch trials in the medieval period were even crueler than this. If a woman was accused of being a witch, she was thrown into a river. If she floated, she was burned at the stake for being a witch. If she sank, she was considered innocent. Either way, the woman had to die. Leaving judgment to the supernatural was called a trust trial.

Trial by jury was introduced under a circuit judge system. Judges regularly visited small towns in rural areas to hold trials. No matter how wise judges were, however, they could not grasp all the facts of a case in just a couple of days. So if a judge arrived in a village, he randomly called up villagers and asked them what happened. Then the judge made a ruling based on what he heard from villagers. A jury system could prevent judges from siding with powerful men in the ruling. But it should not be used in certain cases involving conflicts between natives and outsiders or areas of expertise that jurors cannot understand, like the case between Samsung Electronics and Apple over patent rights.

Several recent rulings in Korea have incited heavy criticism of judge bias. One judge suspended a sentence for a man who ran an illegal gambling website and raked in 3 billion won (2.8 million U.S. dollars). The judge gave a lengthy explanation in sentencing on the basis of this unusually light punishment. After criticizing government policies promoting the gambling industry, the sentencing read, “Though the defendant`s guilt was admitted, it would be unjust if the defendant was punished by a country responsible for a greater guilt.” The judge said Korea operates and promotes a variety of gambling businesses such as lottery, horseracing, cycle racing and casinos but has never been punished, thus it would be unfair if only the people have to be punished for running gambling businesses. This reason is being criticized for confusing a country’s public businesses with personal interests. The judge might have wanted to reflect his personal values in the ruling, but he should have considered the constitutionality of the law first.

The Constitution says, “Judges shall rule independently according to their conscience and in conformity with the Constitution and laws.” The conscience of a judge mentioned here must be based on common recognition that earns social consensus and must not reflect personal values. Korea has adopted Dreiinstanzensystem, which allows the erroneous rulings of lower courts to be corrected by higher tribunals in three tiers. Going through each process, however, requires great pain and expenses to all parties involved. This is why a major responsibility of the judiciary is to manage the capabilities and characters of judges.