[위헌법률심판제청신청][미간행]
The purport of the proviso of Article 48 of the Civil Procedure Act allowing a final judgment without suspending the procedure even if a motion to challenge a judge involved after the closing of argument is filed, and whether this provision infringes on the essential contents of the judicial evasion system, thereby unconstitutional (negative)
Article 48 of the Civil Procedure Act, Article 27 of the Constitution, Article 41(1) of the Constitutional Court Act
Applicant
The request for adjudication on the constitutionality of the instant case is dismissed.
The reason for requesting an adjudication on constitutionality is examined.
The legislators have legislative discretion to form the specific contents of the right to claim a trial guaranteed by Article 27(1) of the Constitution, and the content of its formation cannot be determined as unconstitutional unless it deviates from the limit of reasonable discretion.
A judge evasion system is a system that guarantees a judge's right to receive a fair trial by excluding the judge from performing his/her duties in the case at the request of the party concerned, but it is highly abstract that the grounds for the challenge are stipulated in very abstract, and it is likely that a judge's independence is infringed and prompt progress of trial is hindered by abusing it as a party's delay of litigation due to abuse as a party's delay of litigation, such as filing an application for challenge, etc. with the court's subjective dissatisfaction or suspicion that it is difficult to expect the fairness of trial on the grounds that it is not sufficient to expect a fair trial. The purport of the proviso of Article 48 of the Civil Procedure Act that allows a judge to apply for challenge after the closing of pleadings and to render a final judgment without suspending litigation proceedings where there is a request for challenge against a participating judge after the closing of pleadings is made after the court proceedings are already concluded and only the final judgment is remaining after the court has already formed a trial examination certificate on the substance of the case, and it is highly probable that the party concerned may abuse the challenge system, such as a request for challenge to report damage to himself/herself.
Therefore, the proviso of Article 48 of the Civil Procedure Act, which allows a motion for challenge after the closing of argument to suspend litigation procedures and to render a final judgment without suspending litigation procedures, can be sufficiently recognized, and there is no reason to view that there was a violation of the essential contents of the judicial challenge system, thereby infringing the party’s right to fair trial and exceeding the limit of legislative discretion.
Therefore, the application for a motion for adjudication on the unconstitutionality of the instant case is dismissed. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Nung-hwan (Presiding Justice)