Discussion on the legitimacy source of Court Judge
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Transcript of Discussion on the legitimacy source of Court Judge
Discussion on the Legitimacy Source of Court Judge in Taiwan
Senior, Dep. Of Law, NTU B95A01150 Chia-ching Chen
Report on Judicial System
Outline
• Origin of this report
• Proposition of the Question– Definition, Issue and Limitation
• Examples in foreign countries– Germany, Italy, Japan, USA, France and Korea
• Democratic Legitimacy of Justice
• Examination from Public Choice Theory
• Conclusion
omnis anima potestatibus sublimioribus subdita
sit non est enim potestas nisi a Deo quae
autem sunt a Deo ordinatae sunt
- APOSTOLI AD ROMANOS EPISTULA
SANCTI PAULI 13:1
Origin of this report
• 2007 .7th Resolution of Criminal Court in Supreme Court.
• “the Expectation of People”
• Different from Legislature & Execution
• Constitution Art. 80: Independent to judge
DEMOCRATIC LETIGIMACY v. IMPARTIAL JUST
Proposition of the Question
• Definition of “JUDGE”
• Where do they come from?
• Issue I: Can Judges be Elected?
• Issue II: How to Locate them?
• Discussion Pattern and Limitation
Definition of “JUDGE”
• “Judge”:
– Grand Justice NOT included
– District Court,
– High Court,
– Administrative Court Judges are included
Where do they come from?
• The Examination by the Ministry of Examination
• The Training by “Judges and Prosecutors Training Institute”, Ministry of Justice
Nominated by “Examination”?
Appointed by “Execution”?
• President: Elected by the People
• Legislators: Elected by the People
• Judges?
– No democratic, institutional way to respond to suspect that raised from the heart of the people
– Resolutions?
indirect, un-independent
– “Judges Law”
internal, not external
Interaction between Judge and the People
By “Social Movement”???
Issue I: Can Judges be Elected?
• No Democratic Legitimacy
• Professional Judgment bows to populist?
v.s.
• Direction Election shakes Impartial Judgment?
Issue II: How to Locate them?
• Bureaucracy?
• Electoral Officials?
• Professional Experts?
• Priest?
Discussion Pattern and Limitation
• Pattern:
– Comparative Law
– Public Choice
• Limitation:
– No pragmatic data and enough literature review
– Not considering the variable of Constitutional Court
– Solution without adjust from other two sectors
Examples in foreign countries
• Parliamentary System– Germany
– Italy
– Japan
• Presidential System– USA
• Semi-Presidential System– France
– Republic of Korea
Bundesrepublik Deutschland
Bundesgerichthof, BGH
Bundesverwaltungsgericht, BVerwG,
Bundesfinanzhof, BFH
Bundesarbeitsgericht, BAG
Bundessozialgericht, BSG
Bundesverfassungsgericht, BVerfG
For Supreme Courts: GG Art. 95 II
Minister of Managing Minister
Richterwahlausschuß
For State Courts: GG Art. 98 IV
Repubblica Italiana
luogo per concorso
OR
del Consigliosuperior dellamagistratura
日本国
• 最高裁判所長官 (裁判所法 Art. 39)
• 最高裁判所判事 (日本国憲法 Art. 79 I, II)
内閣指名
天皇任命
国民の審査
内閣任命
国民の審査
• 下級裁判所の裁判官
内閣任命
任期を十年とし、
再任されることができる。
但し、法律の定める年齡に達した時には退官する
but
The United States of America
• Federal System:
• State System
PresidentAppointment
SenateConsent
Election Appointment Others
République française• Magistrats du siège à la cour de cassation et
Premier président de cour d'appel
• autres magistrats
Le Conseil supérieurde la magistrature
Ministre de la justice
consulté
대한민국
• 大法院長 대법원장
• 大法官대법관
국회의
동의를대통령이
임명한다
대법원장의
제청으로국회의
동의를
대통령이
임명한다
• 其他法官대법원장과 대법관이 아닌 법관은
대법관회의의
동의를대법원장이
임명한다
Conclusion
• Three patterns:
– Special Committee
– Executive and Legislative
– Others
Democratic Legitimacy of Justice
• Judicial Power of the Three Powers
• The Democratic Linkage
Judicial Power of the Three Powers
• Four characteristics of Judicial Power:
–Passiveness
–Neutrality
–Correctness
–Authority
• Passiveness:
– No direct interaction without petition
• Neutrality
– High democratic threshold
• Correctness
– Stability, Protection of the Constitutional Order
• Authority
– Where does it come from? Faith?
The Democratic Linkage
• Direct Election
• Appointment:
President Prime Minister
People President
People Parliament
• Supervision
ElectoralOfficials
Bureaucracy
Judicial Power?
• Direct Election: X
• Direct Supervision: X
• Appointment and Consensus: maybe
Examination from Public Choice Theory
• Optimize the choice where the total cost is
the lowest
• There are two kinds of cost in collective action including voting or decision making.
–External Cost
–Decision Making Cost
ExternalCostIn any case, participation in collective activity is costly to the individual, and the rational man will take this fact into account at the stage of constitutional choice.
DecisionMakingCostAt the lower levels there is apt to be little real bargaining.As unanimity is approached, individual investment in strategic bargaining becomes highly rational, and the costs imposed by such bargaining are likely to be high.
TotalCostthe individual will choose the rule which requires that K/N of the group agree when collective decisions are made
When it comes to Constitution…
The upper curve, that of external costs, remains relatively high throughout its range over the various decision-making rules until
it bends sharply toward the abscissa when near-unanimity becomes the rule.
More fear on the result of
the decision
The lower curve, that of decision-making costs, may not, in such circumstances, be a factor at all.
More willing to take
collective action
More External Cost,
Less Decision Making Cost
Not just Counter-Majority,
But also Including More Minority
Conclusion