형사소송에서 기피제도의 문제점과 합리적 운영방안

The Defect and Rational Management Plan of System of Challenge a Judge in Criminal Procedure

The system of challenge a judge is almost disappeared in our criminal procedure. If a judge falls under any of the reasons for exclusion or if there is any apprehension that a judge may render an unfair judgment, a prosecutor or the criminal defendant may challenge a judge. However, the notion of unfair judgment is so ambiguous that we can t foresee. A bigger problem is in Article 20 in Criminal Procedure Law. An application for challenge which evidently aims at delay of the proceedings or contravenes the provisions of Article 19 in Criminal Procedure Law, shall be dismissed by a ruling by the court or judge who has received such application. This is one of self-judgement about judge s decision and demolishes the system of challenge a judge of Article 18 in Criminal procedure Law. I am suggesting here that the system the judge who has been challenged dismiss has to be thrown out. The right to a fair trial and to participate will have to take precedence over a speedy trial.